nb. IF YOU HAVE RECEIVED A NOTICE OF ISSUE - this is an error - please ring the court on
Otherwise if you have received a CLAIM FORM from the court follow the Steps below.
STEP ONE
ACKNOWLEDGE THE CLAIM - within 14 days from getting the claim.
STEP TWO
START A THREAD ON LB
STEP THREE
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.
Defence of Breach of Consumer Contract Regulations
3.The alleged Agreement was conducted through the Defendant’s website,http://ift.tt/1s5fheN . 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”).
4.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”.
Leave PARAGRAPH 5 and 5 out if you did not try to cancel - and remove green words from 7.
5.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.
6.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.
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.
Defence of Breach of Consumer Protection Regulations
8.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).
9.In particular, the Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that:
it deceived the Defendant or was likely to deceive the average consumer;
it caused the Defendant or was likely to cause the average consumer to take a transactional decision she would not have taken otherwise,
in relation to the services provided by the Claimant.
10. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it created confusion 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
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:
11. The Claimant’s website misleadingly implied that it was the official website for HMPO; and
12. 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.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
14. Further or alternatively, the Claimant through its words, advertising, or behaviour, used the misrepresentations set out in Paragraphs 9 and 10 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.
15. 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
16.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.
17.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”).
18.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.
19. These penalties are therefore unenforceable at common law.
20. 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:
-harassment of the Defendant 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.
21. 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.
22. The Personal Data, as defined by section 1(1) of the Data Protection Act 1998, includes the Defendants:
23.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.
24.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.
25. 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.
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.
26. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.
- County Court Money Claims Centre: 0300 123 1057, 01604 619 402 and tell them and ask them to check a claim form has been sent to you. There should be a claim number on the front of the notice of issue. The Claimant has completed the wrong boxes on his online submission and put your address down as his solicitors. He does not (so far) have a solicitor so the box should have been left blank, it means all documents intended for the Claimant will come to you which can get a bit confusing.
Otherwise if you have received a CLAIM FORM from the court follow the Steps below.
STEP ONE
ACKNOWLEDGE THE CLAIM - within 14 days from getting the claim.
- Visit http://ift.tt/1u7PL8O and register with government gateway, follow the instructions on the page for defendants. This will enable you to log in to the claim online using the claim number ( top right of the court form ) and the Password given ( middle/bottom right )
- Tick the 'I intend to defend all of this claim'
- You do not need to contest jurisdiction.
- You do not need to complete any further information at this stage.
- Acknowledging the claim protects you from the claimant's obtaining a default judgment against you and extends the time you have to enter a defence to the claim to 28 days from service (when you recieved the claim form)
STEP TWO
START A THREAD ON LB
- Start a thread and write a little bit about your experiences with the company, how to came to use the site, telephone them etc, whether you tried to cancel, whether an appointment was booked, and whether it was in your name at the right place etc. Outline any calls/emails/harrassment you have experienced with the firm and anything else you think may be relevant.
STEP THREE
- Sort out a defence. This is a DRAFT of a defence which you can adapt. Any personal arguments which back up the legal arguments will be submitted to the court at a later stage in form of a witness statement and evidence. For now the court wants to know why they should not give judgment to the Defendant on a legal basis.
- You can submit your defence online through the moneyclaim online system - if there is ANYTHING you are unsure of then POST ON YOUR THREAD. We'd rather you ask a pile of ''daft'' questions than jsut submitted any old thing willy nilly ;) xx
- You could also complete it on the form in the claim pack from the court, or email it to the court. If you do this you will need to send a copy directly to the Claimant's address as well.
GREEN BITS NEED CHECKING/AMENDING/PERSONALISING TO YOUR CASE.
Quote:
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.
Defence of Breach of Consumer Contract Regulations
3.The alleged Agreement was conducted through the Defendant’s website,http://ift.tt/1s5fheN . 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”).
4.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”.
Leave PARAGRAPH 5 and 5 out if you did not try to cancel - and remove green words from 7.
5.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.
6.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.
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.
Defence of Breach of Consumer Protection Regulations
8.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).
9.In particular, the Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that:
it deceived the Defendant or was likely to deceive the average consumer;
it caused the Defendant or was likely to cause the average consumer to take a transactional decision she would not have taken otherwise,
in relation to the services provided by the Claimant.
10. The Claimant’s advertising, conduct, express words, or overall presentation of the Claimant’s website was such that it created confusion 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
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:
11. The Claimant’s website misleadingly implied that it was the official website for HMPO; and
12. 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.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
14. Further or alternatively, the Claimant through its words, advertising, or behaviour, used the misrepresentations set out in Paragraphs 9 and 10 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.
15. 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
16.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.
17.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”).
18.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.
19. These penalties are therefore unenforceable at common law.
20. 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:
-harassment of the Defendant 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.
21. 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.
22. The Personal Data, as defined by section 1(1) of the Data Protection Act 1998, includes the Defendants:
- Full name;
- Home address;
- Home telephone number;
- Mobile phone number;
- Personal email address;
- Gender;
- Date of Birth
- Town of Birth
- IP Address
- Signature
23.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.
24.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.
25. 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.
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.
26. The Defendant denies the Claimant is entitled to the relief as claimed, or at all.
HOW TO DEAL with a claim from BPS
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