*** WON WON WON *** Scammed v BPS - court date 7th July *****

[Amethyst]

Re: *** Scammed v BPS - court date 7th July - WS in by 12th June - fee by 22nd may

If he did discontinue he wouldn't do it till either 7 days before the hearing or the day before, so I wouldn't worry about the court just yet. If we check with them on the 1st July then if it is still going ahead at that point we'll get together a skeleton argument for you to send into court a couple days before the hearing xx and no, I don't expect there will be ANY names in that Lost column xxx

[Amethyst]

Re: *** Scammed v BPS - court date 7th July - WS in by 12th June - fee by 22nd may

Considering latest developments we should aim to do some skeleton arguments and updated witness statement between Wednesday ( when the appeal ASA adjudication is published ) and Friday - to get to court for Monday.

[Amethyst]

Re: *** Scammed v BPS - claim form dated 23/2/2015 - defence done

IN THE CHELTENHAM COUNTY COURT

Claim No. B9QZ842F

B E T W E E N:-

UK SERVICES & SUPPORT LTD
Claimant
and

MARIANNE BAINVEL
Defendant

____________________________________________
SKELETON ARGUMENT FOR
THE DEFENCE
_____________________________________________

1. The Defendant respectfully asks the court to consider whether the Claimant has complied with the order of xxxxxx(hearing date order).

1. 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.

1. The defence can be summarised thus:
   1. Either there was no contract; or
   2. 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
   3. If there was a contract, the Claimant’s failure to provide a copy of the contract in a durable medium allows the Defendant to cancel the contract; or
   4. The Claimant’s misrepresentations entitle the Defendant to rescind the agreement; or
   5. The Claimant used disproportionate charges for breach of the agreement, which amount to unfair terms and are therefore not binding on the Defendant.

1. No formation of contract

1. As set out in the Defendant’s witness statement at paragraph 12, the Defendant did not complete the payment page of the Claimant’s online booking process. Instead, noting that the process could be cancelled, 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.

1. The Claimant bound the Defendant to unfair terms which could not be seen in advance

1. 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;

1. 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.

1. 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.

1. 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 he 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.

1. 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

1. 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 have, 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.

1. 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.

c. failure to provide a copy of the contract in a durable medium

1. The alleged Agreement was conducted through the Claimant’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”).
2. 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:

Confirmation of distance contracts
16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.

1. The Department for Business, Innovation and Skills has given Implementing Guidance on the 2013 Regulations.[1] That Guidance states in section G Providing Information:

3. The regulations require confirmations for distance contracts and off-premises contracts to be provided on a durable medium…
4. There are a number of ways in which the trader can meet their obligation to ensure that they provide the relevant information in a durable medium.

• A letter is a durable medium…
• A CD/DVD is a durable medium…
• An email is a durable medium. However, information contained via link to a website which may change, and which is embedded in an email is not.

1. The Claimant did not send a copy of the contract in a durable medium, they merely provided a link to a website. 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”.
2. The Defendant exercised her right to cancel the Agreement by closing the “pay now” browser window on his computer, and thereby ending the Agreement (see paragraph 12 of the Defendant’s witness statement).
3. Additionally the Defendant made attempts to cancel any agreement following emails from the Claimant indicating their belief she had entered into a contract with them, which is denied. ( see paragraph’s 15,18 and 19 of the Defendant’s witness statement)
4. Alternatively, the Defendant was precluded from exercising his 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. This is because the Claimant alleges that it immediately performed the alleged services under the alleged agreement.
5. If follows that 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 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).
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.

1. The Defendant’s evidence is supported by reference to the Advertising Standards Authority (“the ASA”) ruling against the Claimant[2]. 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 BPS. The ASA ruled that BPS had:
   1. misleadingly implied that it was the official website for HMPO; and
   2. was misleading because it did not make clear that the fee charged by the BPS was a service charge only, and that an additional fee was payable to HMPO to obtain a passport.
   
   
2. Under the 2008 Regulations, “misleading actions” are prohibited by Regulation 5:

“5. Misleading Actions
(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
(2) A commercial practice satisfies the conditions of this paragraph-
(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(3) A commercial practice satisfies the conditions of this paragraph if-
(a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
(b) …
(4) The matters referred to in paragraph (2)(a) are-
(a) the existence or nature of the product;
(b) the main characteristics of the product (as defined in para 5);
(c) the extent of the trader's commitments;
(d) the motives for the commercial practice;
(e) the nature of the sales process;
(f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
(g) the price or the manner in which the price is calculated;
(h) the existence of a specific price advantage;
(i) the need for a service, part, replacement or repair;
(j) the nature, attributes and rights of the trader (as defined in para 6);
(k) the consumer's rights or the risks he may face.”

1. As can be seen from Regulation 5, there have been a number of misleading actions on behalf of BPS, 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.
2. On the 1^st July 2015 the ASA published the outcome[3] of the Claimant’s challenge. The ASA ruled that the website;

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

1. 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.
2. Trading Standards are currently investigating the claimant and on 26^th June 2015 issued a press release[4] in which Mike Andrews, NTSeCT’s national coordinator, said: “We arrested five people who were running a copycat website following large numbers of consumer complaints about the site to Citizens Advice. We felt it imperative to act to prevent these criminals from duping any more people into giving away their money.”
3. On Sunday 28^th June the Daily Mail published an article[5] naming Mr Richard Howard as one of those arrested. On Monday 29^th June Radio 4 You and Yours programme[6] again named Mr Richard Howard.

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

1. The ruling against the Claimant by the ASA (set out in paragraph 24 above) is evidence that the Claimant made a number of misrepresentations to the Defendant. The Defendant is entitled to rescind the contract under s.1 of the Misrepresentation Act 1967, or is entitled to damages under s.2 of Misrepresentation Act 1967. This defence only applies if the previous grounds of the defence are unsuccessful.

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

1. 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.
2. 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.

1^st July 2015

---

[1] https://www.gov.uk/government/upload...s-guidance.pdf

[2] http://asa.org.uk/Rulings/Adjudicati...x#.VNsP5C4sp-V

[3] https://www.asa.org.uk/Rulings/Adjud...x#.VZPDRkbAle1

[4] http://www.tradingstandardsecrime.or...rther-arrests/

[5] http://www.dailymail.co.uk/money/com...nt-police.html

[6] http://www.bbc.co.uk/programmes/b06084kg (33.00 mins)

[Amethyst]

Re: *** Scammed v BPS - claim form dated 23/2/2015 - defence done

Numbering will need sorting - I've email you a copy anyway

[Scammed]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

Thank you for all your help

[Amethyst]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

Best of luck tomorrow - I don't think you'll need it as there's a bit more weight behind your argument for the site being misleading now with the TS investigation being public knowledge and the ASA appeal upholding the original adjudication - and you have a good case without that. Try and treat it as an experience, and let us know how you get on xxxxxxxxx

[Scammed]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

Will do. Fingers cross I will be in and out with a good result to report back! I am not very good at been strong in front of authority so I hope I get a nice judge and not a scary one!

[EXC]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

Will do. Fingers cross I will be in and out with a good result to report back! I am not very good at been strong in front of authority so I hope I get a nice judge and not a scary one!

You don't have to be strong, just be polite and honest and you'll be fine.

Don't be afraid to ask for your costs at the end.

[Kati]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

Good luck [MENTION=60515]Scammed[/MENTION] ... we know you'll do great xx

[Amethyst]

Re: *** Scammed v BPS - court date 7th July - do skels with TS & ASA updates

WON !!! ( details on public thread)