WON Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .

**Amethyst** · 6th May 2015, 20:23:PM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

This is a new bit, send in an email to Dandeogden in December - appears to be the same as their appeal to the ASA.... and in the name of their defunct company 'passport services worldwide'.

Attached Files

website-disclaimers.pdf (1.11 MB, 1 view)

**Amethyst** · 6th May 2015, 20:25:PM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

I used the claimant's website on or around 1st May 2014, but did not hear anything more from the claimant before the holiday for which my daughter needed her passport. I wrongly presumed that was the end of the matter. I had, in the meantime, got a fast-track passport for her through official means. I then received a text message stating I had an appointment booked on 9th June 2014, which I replied to cancel.

So a no service provided issue there.

Date of Travel was 23 May 2014

Do you know what date you received the text message giving the appointment of 9th June ?

**Amethyst** · 8th May 2015, 11:57:AM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

COurt date 10th June.... need to get WS off before 22nd May

**dandeogden** · 20th May 2015, 16:01:PM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

Hi Sharon,

Weirder and weirder… I can now access the thread, but when I went to attach my draft witness statement to it my screen just went white. Here it is, I just need to get the dates of the letters sent to me by BPS / County Court Services. I am not sure how I will be including the stated Exhibits - how does one attach text messages (in some cases failed ones)?

IN THE COUNTY COURT BUSINESS CENTRE
BETWEEN:-
UK SERVICES & SUPPORT LTD

and

xxxxxxxxxxxxxxxxxxxx
Defendant
____________________________________________
WITNESS STATEMENT
_____________________________________________
I, xxxxxxxxxxxxxxxxxxxofxxxxxxxxxxxxxxxxxxxxxxxxx will state as follows;
1. I am a Business Engagement Analyst, working for Vodafone Ltd, and the defendant in these proceedings. I make this witness statement in support of my defence in this case.

2. On or around 1st May 2014 I found myself in a position where I needed to renew the passport of my daughter, xxxxxxxx Ogden, at short notice.

3. I searched online for “Urgent Appointments Passport Office”, using Google and clicked on a result at the top which stated British Passport Services.

4. This took me to the British Passport Services website. I thought straight away due to its official looking appearance and name, that it was Her Majesty's Passport Office website. I saw that it offered a “Premium (1 Day ) Booking Service”, which was priced at £117.60, which I thought included the cost of my passport. I clicked on this and was taken to another page. I was asked for my personal details, date and time of travel and to give 2 available dates that would suit me for an appointment. I filled in all the information, as requested, including my 2 most convenient appointment dates and my flight date and time, which was 23 May 2014 21:40 and clicked on proceed. It was only when asked to make a payment that I realised that this was not, in fact, anything to do with the official cost of getting a passport, and therefore I was on an unofficial website. I closed my browser window, and believed that, as the four essential elements of a formal contract under the Consumer Protection (Distance Selling) Regulations 2000 had not been fulfilled, that I had not entered into a legal agreement with British Passport Services. These four elements being:
i. Offer
ii. Acceptance
iii. Intention of legal consequences
iv. Consideration

5. On 29th May 2014 at 16.30 pm I received a text message (Exhibit A) stating “Your passport appointment ref 86129260 at London Globe House on Mon 9 Jun 11:15, 1 week service. To cancel text CANCEL 86129260 to 60017 or call 03002220000”.

6. As I was already on the holiday for which the passport was needed, on 29th May 2014 at 17.06 pm I texted CANCEL 86129260 to 60017 (Exhibit B)

7. On 29th May 2014 at 17.08 pm I received a text message (Exhibit C) Your appointment with a reference of 86129260 on Mon 9 Jun 11:15 in London Globe House has been cancelled.

8. I heard nothing further until 16th December 2014 at 17.33 pm when I received a text message (Exhibit D) from British Passport Services stating “xxxxxxxxxxxx, we have just sent you an important email to xxxxxxxxxxxxxxx.xxxxxxxxxxxx@vodafone.com about an outstanding balance of £117.60 on your account. Please review the email and reply as soon as possible. 0203 701 2916. Regards Sam Harris”

9. As I didn’t received the stated email, I rang BPS, who then sent me an email at 17:42pm on 16th December 2014 (Exhibit E) outlining the services they claimed had provided with a link to an unpaid invoice for the sum of £202.60 including the following line items:
a. Booking Fast Track Service (1 Week) - £103 Adult / £87 Child
Appointment 10:15am June 9, 2014 - £10.00
• Use of Online Appointment Booking Form - £10.00
• SMS, Email & Letter Confirmation - £10.00
• Checking Online Form for Errors - £8.75
• Directions to the Passport Office - £10.00
• Emergency Travel Document Card 1yr Validity - £10.00
• 30 Minute Telephone Consultation - £14.25
• WebChat, Email, 24hr Helpline Access - £20.00
• Having 04 Passport Form Posted - £5.00
• Current Overdue Invoice Charges - £85.00

10. Upon receiving this invoice I reported the claimant to Trading Standards (ref. 12511022) and was told that BPS were already being investigated for fraud. They advised me to send the claimant a letter advising my position in regard to the Consumer Protection (Distance Selling) Regulations 2000, and to not pay. I sent the letter on 17^th December 2014 (Exhibit F), and was phoned subsequently to be told that they would be taking me to court. I do not have a time / date record of that call.

11. On 23rd December 2014 at 09:32, I received a text message from BPS stating “Dear xxxxxxxx, please remember that today by 6pm is the final day to make a payment without the invoice being forwarded to our collections department. Pay now on 0161 663 0072 or at xxxx.settleinvoice.org.uk” (Exhibit G)

12. On 24th December 2014 at 12:33, I received a text message from BPS stating “Mrxxxxx, we have just sent you an important email to xxxxxxxxxxxxxx@vodafone.com regarding possible Court Proceedings to recover the £117.60 that you continue to refuse to pay us. 0161 663 0072” (Exhibit H)

13. On 7th January 2015 at 10:09, I received a text message from BPS stating “Mr xxxxxxxx, please accept this text message as our final request for the £139.10 and part of our Pre Action Conduct. Should payment not be received by 6pm this evening Court Proceedings will be issued without further notice. Want to pay, visit xxxxxxxx.settleinvoice.org.uk (Exhibit I)

14. I replied to this text message with the following: “Hi, I have sent you a letter explaining that as I didn't have any services from you, and didn't make any initial payment to initiate any services we did not have a contract” (Exhibit J). There is no time / date on my text as any replies to these texts are undelivered.

15. I now strongly believe I was misled and deceived into understanding that I was dealing with the official HMPO service contrary to the Misrepresentation Act 1967.

16. By now I had researched British Passport Services / UK Services and Support Ltd and realised, by the overwhelming amount of complaints on the internet and the scores of dissatisfied customers, that they were a well-established “Copycat” Third Party Company who misled unsuspecting members of the public with their official looking website and charged large sums of money to make, what should have been free, Passport Office appointments for them.

17. I also discovered that another of the Claimant’s websites ‘UK Passport Offices’ was the subject of an Advertising Standards Authority adjudication (ref A14-273276) [Exhibit O] which found that the website breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.9 (Qualification) and 3.17 (Prices). The ASA required that the site be removed or changed.

18. I then received a registered letter (Exhibit K) dated 21st November 2014, from British Passport Services which was entitled “Formal notice of intended court action – Pre-Action conduct letter” threatening to take me to court if I didn't pay them. This included a 3 page letter, 2 copies of a Court Claim Form Example filled in with all of my details, a copy of the invoice, a copy of my input onto their website, and a list of ways to pay them.

19. At the beginning of January 2015 I received the claim form in this case (Exhibit L) dated 29th December 2014, from Northampton Small Claims Court, which was claiming £145.60 plus £25.00 Court fee. I returned the form stating that I intended to dispute the claim and I was offered mediation services. I later heard from the mediation service but as I was not willing to compromise because it is apparent that I did not receive the service for which the claimant is claiming, it was referred to court for a hearing.

20. In addition to the £117.60 'service' fee, the claimant is claiming numerous 'overdue invoice' fees (Exhibit M) which amount to penalties under Common Law and which breach regulation 5(1) of the Unfair Terms in Consumer Contracts Regulations 1999.

21. I have since discovered that ALL of the information which I put on to the Claimant's website during my initial application, was, for several months, available to the public on the internet without any restraints – this included all of my personal details: full name, address, date of birth, place of birth, the date that my passport expires and my signature.

22. 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.

23. 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

24. 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 distress, which has come about by reason of the Claimant’s contravention of the requirements of the Data Protection Act 1998. The Claimant therefore claims compensation under s.13(1) and 13(2) of the Data Protection Act 1998.

25. I do not believe I have any liability to the Claimant. I received no usable services from the Claimant.

I believe that the facts stated in this witness statement are true.

Signed

Dated

**Amethyst** · 20th May 2015, 16:11:PM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

Hiya

The way I put Witness statement exhibits together is paste the witness statement into a word document, then copy and paste (or add picture) the images/texts at the end labelled as Exhibit A, Exhibit B etc, then print the whole lot to a PDF.

Courts will usually accept the Witness Statement by email if you give them a call first and check the email address. The copy for richard should really be printed out and posted to him at his 12 Deer Park Road address (as on the claim form)

You've done a good job with that Witness Statement

At Paragraph 4 I think you should add a screenshot of an example of the Payment Page. I'll get a copy for you, and there's also a little extra text you could add there....which backs up your consideration argument.

**Amethyst** · 20th May 2015, 16:12:PM

Re: Dendeogden v BPS - defence in, mediation done, waiting court date.... so prep WS

example HiPay payment screen screenshot attached

Suggestion to add into para 4 (might need to split it up a little bit)

On the payment page were the words: "By clicking the "Pay" button, I confirm that I have understood and accepted the conditions of use." a copy of which is included at Exhibit X. Since I did not click on the pay button, and had closed the browser session at that point, I was clearly indicating that I had neither understood nor accepted the 'conditions of use'. I did not believe that I had entered into any binding agreement, and at that stage I had made no promise to make any sort of payment. I understand that without making any promise or making any payment, there is no consideration which is a prerequisite for any contract being formed. I understand that up until the point of payment any actions by myself or the alleged supplier of services is no more than an invitation to treat.

Attached Files

BPS_PaymentScreen.png (62.0 KB, 4 views)

**EXC** · 20th May 2015, 16:14:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

I am not sure how I will be including the stated Exhibits - how does one attach text messages (in some cases failed ones)?

Do you mean printing them? If your can't upload them to a computer take photos of them on the screen of your phone.

**Amethyst** · 20th May 2015, 16:22:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

ahh yes, that actually answers the question asked doesn't it... lol sorry xx Yes take a photo of the text - or if you have a more up to date phone you should be able to save a screenshot (I have no idea how to do that though) couple examples of what other's have done attached (redacted)

Attached Files

**EXC** · 20th May 2015, 16:29:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

On your witness statement it might be an idea to say, after para 4, that you secured a passport through the official channels thus making it clear it wasn't BPS.

In para 7 do you know if the notification of the cancellation came from BPS or HMPO? If so you should state who.

**Amethyst** · 20th May 2015, 19:44:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

29/05/14 16:30 – Text Message from BPS
Your passport appointment ref 86129260 at London Globe House on Mon 9 Jun 11:15, 1 week service. To cancel text CANCEL 86129260 to 60017 or call 03002220000.

29/05/14 17:06 – Text Message to BPS
CANCEL 86129260 to 60017

29/05/14 17:08 – Text Message from BPS
Your appointment with a reference of 86129260 on Mon 9 Jun 11:15 in London Globe House has been cancelled.

**dandeogden** · 21st May 2015, 12:19:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

Hi there,

Many thanks for all the information and pointers. I have added in the payment screen, and the wording you suggested above - it really strengthens my argument. I haven't attached my witness statement pdf, but I am happy to do so if it will help other defendants.

Dominic

**Amethyst** · 21st May 2015, 12:31:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

Great stuff

Would you mind emailing me a copy of the final version ?

I don't think you'll have much problem winning this based on the lack of service, and you have put it all across well in your Witness Statement

however we might want to put in a skeleton argument a couple days before your hearing, depending on what Richard Howard includes in his witness statement, if that needs countering, and whether he discontinues before then.

If you haven't received a copy of his Witness Statement by say Monday, it might be an idea to give your court a call to see if they have had it, or a notice of discontinuance.

**Amethyst** · 7th June 2015, 10:28:AM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

Okay need to check Mr Howard's WS and whether to put in a Skeleton argument in this case, would need to go in for Tuesday. [MENTION=65546]dandeogden[/MENTION]

**Amethyst** · 7th June 2015, 16:27:PM

Re: Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .... so prep WS

Draft SKeleton Argument

IN THE xxxxxxxx COUNTY COURT Claim No. xxxxxx

B E T W E E N:-

UK SERVICES & SUPPORT LTD
Claimant
and

xxxxxxxxxxxxxxxxxxxxxx
Defendant

____________________________________________
SKELETON ARGUMENT FOR THE DEFENCE
_____________________________________________

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.

2. The defence can be summarised thus:
a. Either there was no contract; or
b. 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
c. The Claimant’s misrepresentations entitle the Defendant to rescind the agreement; or
d. There was no service provided by the Claimant; or
e. The Claimant used disproportionate charges for breach of the agreement, which amount to unfair terms and are therefore not binding on the Defendant.

a. No formation of contract
3. As set out in the Defendant’s witness statement at paragraphs 8 to 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.

b. The Claimant bound the Defendant to unfair terms which could not be seen in advance
4. 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;

5. 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.
6. 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.
7. 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.
8. 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
9. 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.
10. 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.

e. Claimant’s misrepresentations entitle the Defendant to rescind the agreement
11. The Defendant’s evidence is supported by reference to the Advertising Standards Authority (“the ASA”) ruling against the Claimant . 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:
a. misleadingly implied that it was the official website for HMPO; and
b. 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.
12. 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.

13. In particular, as set out in the Claimant’s particulars of claim, the Claimant states that they provided the Defendant with a package which included booking the Defendant an appointment at the passport office. However, the alleged appointment made by the Claimant was made for a date AFTER the Claimant had already obtained the passport via the official process and left the country on his holiday, with his daughter. The appointment date was not communicated to the Defendant until the 29th May, 6 days after the Defendant’s date of travel.

14. The Claimant, on his online form, requests a consumer to select three dates on which he would prefer his appointment to be made. The Claimant also requires the consumer to complete his date and time of expected travel. Stating that an appointment will be made to enable a consumer to renew a passport urgently and then booking an appointment for a date over two weeks after the expected date of travel, is a clear misrepresentation, or at the very least, a breach of the terms of the agreement. Given that this is the only “service” which the Claimant is said to have actually provided, this amounts to a complete failure to provide the alleged “services” under the agreement. The Claimant’s claim must therefore be dismissed.
f. The Claimant used disproportionate charges for breach of the agreement
15. 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.
16. 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.

WON Dandeogden v BPS - defence in, mediation done, COURT 10th JUNE .