*** WON *** ADS (stickyicky) v BPS - claim received 23/02/2015 *** WON ***

[stickyicky]

Hi guys,

The UK Services & Support Ltd are claiming £197.60 through the county business centre.

I am writing up my defence statement, has anyone had any luck?

Regards,

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Hi sticky, have just moved your thread to VIP ready to pop the documents on tmw and see where we are at with your case.

Do you want to give a run down of how you ended up using BPS, and anything happened since, if you tried to cancel, did you make payment? contact them by phone, and was the appointment booked at the passport office for you ?

and Welcome xx

[stickyicky]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Hi Amethyst,

Thank you for moving the thread

I ended up using BPS by googling "renew british passport" and BPS was the first link on google. I completed the online form, and soon realised that this didn't look right, and within a matter of minutes I called to cancel in which they said on the phone, I can't because they have already provided their service. They were adamant and showed no sympathy. The only option they gave me is to reschedule an appointment. When they said I couldn't cancel, I refused to pay and then called the Peterborough office myself and made an appointment. I told the real passport office about this copycat website and they advised me NOT to pay a single penny and to ignore them, as they were becoming more and more common. So the real passport office were aware that these scams are happening. It might be worth noting that as soon as I filled the form online, I received a text message from the real British Passport Office to confirm my appointment. I only realised later, that my name, DOB, address was all that was required to book an appointment, which is what the BPS did, after I booked the new appointment myself, and received a text from the same number.

Since my refusal, they have been calling from several different, unknown, private numbers constantly, and sending emails. As soon as you open an email, you receive a text message to say, that they know the email has been opened and read, and I have to respond etc. It's just all ridiculous. I've had about 3 or 4 letters of notice to pay, and just 2 weeks ago, I received the official claim (MoneyClaim). Today I went and visited the local MP who is getting his case team to look into my case, and he said I should receive a response in 48 hours. I sent the links to the recent articles, and he said this will be helpful.

Feel free to ask me any other questions.

Thank you.

[EXC]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Hi stickyicky

It might be worth noting that as soon as I filled the form online, I received a text message from the real British Passport Office to confirm my appointment. I only realised later, that my name, DOB, address was all that was required to book an appointment, which is what the BPS did, after I booked the new appointment myself, and received a text from the same number.

I might be that the first appointment confirmation text you received was actually from BPS and only made to look like it was from the real passport office. Have you compared the actual numbers of both conformation texts?

If the appointment BPS claimed to have booked for you was less than 6 months ago you need to ask the (real) passport office for WRITTEN confirmation that the appointment was made for you and confirmation of who booked it for you. This could be very useful to you in defending the claim.

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

When BPS book the appointment on your behalf, they pretend to be you, and the REAL HMPO send out a confirmation text ( which usually shows on the phone as from 'Passport' )

So when you have booked your own appointment AND BPS have still booked an appointment you will get two texts from the REAL HMPO.

BPS confuse matters by sending their 'give us yer money' texts to show in the same message thread as the messages from the REAL HMPO.

But yes,. definately give the REAL HMPO a call 0300 222 0000 and ask if they can check if an appt was made on the date and time BPS say it was, and under what name etc - if they can see can they send you an email stating that no appt was made, or an appt was made but in xxxx name... if it was made in right details and right time then you don't need to ask HMPO to send you anything.

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Claim form.

[stickyicky]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Hi guys,

Apologies for the delay in getting back. I have received a response from the local councillor; he explained the case the to the local MP, and the local MP is now using his case team to further look into this. The case team have gotten in touch with the Home Office, but I don't think they have replied. I can forward the email sent. I will chase the case team Monday morning.

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Here's a draft defence to work from

Needs to be submitted on paper before 25th March.

Here's a starting point.... I've highlighted the bit to amend ..... and we can add more in if you prefer - remember the full 'he said/she said' stuff will come later in the witness statements. Once you've got this in order we'll get it to PDf to email or printed off to send with the claim pack.


------------------------------------------------------------------------------------------------
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 April 2014 the Defendant required to renew his passport and was due to travel overseas on xxx AUGUST xxxx.

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 following a conversation by telephone, completed a form online to book an appointment on xxxxxxxxxxxxx. 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.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. 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.

[stickyicky]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Hey,

I have sent over my first draft, if you can kindly have a read please

Many thanks,

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Done and replied amended copy xx

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 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, prices 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 renew his passport and was due to travel overseas on 21 August 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. He was misled into thinking the Claimant’s website was the official HM Passport Office website.

5. He 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 11 August 2014. The Defendant was led to believe any fee stated was the payment to HM Passport Office for renewal of his passport.

6. After completion of the form and reaching an online payment page the Defendant felt suspicious as to the true nature of the website and telephoned the number given on the website immediately after completing the form to ensure any service was not provided and any agreement that may have been entered into by mistake was cancelled.


Defence of Breach of Consumer Contract Regulations

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 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”.

9. The Defendant exercised her/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. 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. 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.

11. 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 Misrepresentation

12. Further or alternatively, the Claimant through its words, advertising, or behaviour, used the misrepresentations set out below 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.

13. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that:

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

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

c) in relation to the services provided by the Claimant.

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

a) The nature of the service being provided;

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

c) the main characteristics of the service;

d) the extent of the Claimant’s commitments;

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

f) the price or the manner in which the price is calculated;

g) the need for the use of the Claimant’s alleged services;

h) the nature, attributes and rights of the Claimant

15. 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:

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

b) 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.

16. 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

17. 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.

18. 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”).

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

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

21. 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

22. 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

23. 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.

24. 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.

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

26. These penalties are therefore unenforceable at common law.

27. 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:

a) harassment of the Defendant by the Claimant for payment of monies which are not due; and

b) the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.

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 guess the correct web address. All that is 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.

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

i. Full name;
ii. Home address;
iii. Home telephone number;
iv. Mobile phone number;
v. Personal email address;
vi. Gender;
vii. Date of Birth
viii. Town of Birth
ix. IP Address
x. Signature

30. 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.

31. 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.

32. 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.

33. 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.



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

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.


Signed …………………………………………


Dated …………………………………………

[stickyicky]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Thank you!

Also, was I supposed to receive some kind of defence claim pack? Or am I simply sending this defence statement to the Northampton address/email address?

Kind regards,

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

You should have had a form like http://hmctscourtfinder.justice.gov..../n009b-eng.pdf

You can write your defence on there, or print it out and attach it....

It's okay if not we can submit by email

ccbcdefendants@hmcts.gsi.gov.uk

SUBJECT

DEFENCE - Claim XXXXXX - UK Services & Support Ltd v StickyIcky


Defence attached to email as a PDF - needs to be signed, and needs the header and statement of truth adding.. .. see http://www.legalbeagles.info/forums/...448#post522448


and a Hard copy needs to be sent by post to the claimant ( 12 Deer Park Rd )

[Amethyst]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015

Defence due by March 28, 2015

[stickyicky]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015 - defence BY March 28, 2015

Hi,

I need to send my defence by tomorrow and need someone to have a quick read before I sent. Matter of urgency

Can you help please.

Thank you

[enaid]

Re: ADS (stickyicky) v BPS - claim received 23/02/2015 - defence BY March 28, 2015

bump

Not sure what is happening with this as defence by march 28th yet sticky is saying it's today