*** WON **** Rebecca Smith v UKS&S - full hearing on 6th August

[Amethyst]

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March




Have to say, big up for Santander there, excellent customer service.

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Okay, need to put defence together to get to Court for Monday morning. I'll get a draft together now and we can work on it from there.

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Was it the BPS or UK Passport Offices website that you visited initially do you recall ?


Also

1. The Defendant then immediately contacted the Claimant, UK Services & Support Ltd, (HOW- phone / email ?? ) to notify them they would not be using their services on the advice of the HM Passport Office and Santander.

Here's the ''background'' section to the defence based off your application info, if you want to check through that I'm working on the legally bittys now. IGNORE the numbering as it always goes a bit to cock when pasting from Word docs. We'll sort that out once the text is done.

IIN THE NORTHAMPTON COUNTY
COURT BUSINESS CENTRE
CLAIM No: xxxxxx

BETWEEN

UK Services & Support Ltd
CLAIMANT
And

xxxxxxxxxx
DEFENDANT


DRAFT 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, 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 6^th October 2014.

Background

1. On the 6^th October the Defendant was looking to obtain a Visa for her Partner, xxxxxxxxxxx, to visit Turkey, when she noticed his Passport had less than 6 months until it expired.
2. The Defendant conducted an online search for the Passport Office and clicked a button to apply for a Passport Renewal. The Defendant believed this was the official H M Passport Office website.
3. The Claimant sent a form by email to the Defendant, which the Defendant duly completed and submitted to the Claimant.
4. The Claimant then telephoned the Defendant’s Partner and asked for payment of the ‘Passport Fee’. Following discussion, during which the Claimant did not state they were a third party company and did not state the fee was not for the passport renewal, the Claimant emailed the Defendant’s Partner with bank details in order for him to pay the fee via Bank Transfer. The Claimant stated the service would not be able to begin until the payment had been received.
5. The Defendant’s Partner then immediately attended his bank, Santander, in Selsdon, where he requested to make a bank transfer to the details given by the Claimant.
6. Santander refused to make the payment and asked the Defendant’s Partner to go to a side office. They informed him that the payment had been intercepted as fraudulent and would not be made. Santander had telephoned the official HM Passport Office and enabled the Defendant’s Partner to make an appointment on the telephone directly, for the following day 7^th October 2014.
7. The Defendant then immediately contacted the Claimant, UK Services & Support Ltd, to notify them they would not be using their services on the advice of the HM Passport Office and Santander.
8. On 10^th October 2014 Santander further wrote to the Defendant’s Partner to confirm that the transaction had been stopped and offered security advice [EXHIBIT A]
9. The Claimant then proceeded to contact the Defendant’s Partner by email, SMS text message and telephone requesting payment. The Defendant repeatedly informed the Claimant that no payment would be made and that he had not used their services.
10. Contact ceased when the Defendant’s partner changed employment and his email address and telephone number changed.
11. The Claimant then started writing to the Defendant, stating that as the Defendant had originally completed the online form she owed the Claimant the money.
12. The Claim Form in this case was issued on xx February 2015.

Defence of Breach of Consumer Contract Regulations

1. 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”).
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. 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”.

1. The Defendant exercised her right to cancel the alleged Distance Contract under Regulation 29 of the 2013 Regulations, on 6^th October 2014, 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.
2. 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.
3. 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

1. 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).
2. In particular, the Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that:

1. it deceived the Defendant or was likely to deceive the average consumer;
2. it caused the Defendant or was likely to cause the average consumer to take a transactional decision she would not have taken otherwise,
3. in relation to the services provided by the Claimant.

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

1. The nature of the service being provided;
2. The nature of the Claimant’s relationship with the Her Majesty’s Passport Office (“HMPO”);
3. the main characteristics of the service;
4. the extent of the Claimant’s commitments;
5. the direct or indirect sponsorship or approval of the Claimant as an official service provider for UK Passports;
6. the price or the manner in which the price is calculated;
7. the need for the use of the Claimant’s alleged services;
8. the nature, attributes and rights of the Claimant

1. 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:

1. The Claimant’s website misleadingly implied that it was the official website for HMPO; and
2. 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.

1. 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

1. Further or alternatively, the Claimant through its words, advertising, or behaviour, used the misrepresentations set out in Paragraphs X and X 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.
2. 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

1. 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.
2. 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”).
3. As a result, the Relevant Clause which allows for those costs, fees and charges to be applied, is either:

1. Not in clear and intelligible language, and therefore open to assessment of fairness under Regulation 5(1) of the UTCCRs; or
2. 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
3. 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
4. Preclude the assessment of the Claimant’s actual legal costs, and therefore unfair under paragraph 1(q) of Schedule 2 to the UTCCRs.
5. 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.
6. 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.
7. Further or alternatively, the Relevant Clause allows for the imposition of unspecified penalties which do not reflect any actual loss to the Claimant.
8. These penalties are therefore unenforceable at common law.

1. 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:

1. harassment of the Defendant by the Claimant for payment of monies which are not due; and
2. the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.

1. 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.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.

I, xxxxxxxxxxxxxx , believe that the facts in this defence are true.


Signed: __________________
Date: 19^th March 2015

handy it was the 6th October, as the 2013 Regulations came into force on the 1st October 2014

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Defence filed 19/3/2015

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Update from Rebecca -

I have now received a court date for 14th May 2015 and have also received a pack from UK Services and Support Ltd enclosing their witness statement.

[EXC]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Update from Rebecca -

I have now received a court date for 14th May 2015 and have also received a pack from UK Services and Support Ltd enclosing their witness statement.

It would be nice to see that.

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Indeed... waiting on a copy now. This is a set aside application 'defence'.

[EXC]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Indeed... waiting on a copy now. This is a set aside application 'defence'.

Indeed and given that they don't know the difference between a defence and claim it should be rather entertaining.

[Rebecca Smith]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Hi Guys,

Sorry for the delay. I will get the Witness Statement and supporting papers over to you this evening.

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

Witness Statement received.

Identical barring a couple of paragraphs to QueenofHearts Witness Statement.

I'll sort it out to post on here but thought you might like to play spot the mistakes with the first couple paragraphs....

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

This is their generic bit about DataProtection.... spot the fibs.

[Kati]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

I'll sort it out to post on here but thought you might like to play spot the mistakes with the first couple paragraphs....

Hmmm ... it couldn't be those Irish Welshmen could it :lol:

[Amethyst]

Re: Rebecca Smith v UKS&S - set aside hearing - defence due by 23rd March

This is the only bit that relates directly to the defence.