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  • FIRST POST
    • keepswimming
    • By keepswimming 22nd Dec 16, 1:58 AM
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    keepswimming
    bw legal/excel clain form recieved
    • #1
    • 22nd Dec 16, 1:58 AM
    bw legal/excel clain form recieved 22nd Dec 16 at 1:58 AM
    I have a claim form from Northampton courts thanks to BW and Excel, it relates to a PCN issued in summer 2011, the original PCN has just car driving in and out of a car park late evening showing number plates.
    I ve written back to BW legal each time they have sent a letter demanding money, and I have spend hours researching and have read the newbies guide (thank you for posting) just not sure what to do now,
    as its some what confusing reading info to ask for part 18 then not to, but ask for cpr 31.14, and the defences I read look good but all seem to be dealing with gladstones and their robot claims.
    any help would be great, and i know at this time of year time is precious.
Page 5
    • keepswimming
    • By keepswimming 20th Apr 17, 6:49 PM
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    keepswimming
    ok re read stuff, I see I can append exhibits to the WS so ignore my last post on that point, just need another's view point on breaking up the WS as mentioned, or to leave as is, still a bit of work to do.

    thanks
    • keepswimming
    • By keepswimming 20th Apr 17, 9:16 PM
    • 78 Posts
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    keepswimming
    also is it worth adding exhibits of all the letters from BW and myself over the last 6 months, I cant see a reason too, but didn't know if that's required to show correspondence
    • Coupon-mad
    • By Coupon-mad 20th Apr 17, 9:43 PM
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    Coupon-mad
    also is it worth adding exhibits of all the letters from BW and myself over the last 6 months, I cant see a reason too, but didn't know if that's required to show correspondence
    Originally posted by keepswimming
    No need.

    And yes, splitting your WS and skeleton argument where you suggest would be better.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • keepswimming
    • By keepswimming 21st Apr 17, 9:24 AM
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    keepswimming
    I ll tweek and re submit the WS and following Skeleton after I ve split them.

    do I need to add an exhibit list to the WS as I ve seen in other posts or maybe add it to the top of the skeleton?

    I m close to getting this finalised, which is good as I need to post stuff to BW on Monday and drop my folder pack at court, "time is fleeting and madness takes its toll" (rocky horror picture show)
    • keepswimming
    • By keepswimming 21st Apr 17, 10:54 AM
    • 78 Posts
    • 61 Thanks
    keepswimming
    In the (TOWN) County Court Case Number
    __________________________________________________ ________________________________
    EXCEL PARKING SERVICES LTD Claimant
    Parties
    MR *********** Defendant
    __________________________________________________ ________________________________

    Witness statement of Mr ***********

    1. I am (NAME) the defendant in this matter and the facts in this Witness statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

    2. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. There is no evidence of the driver and as this event has been resurrected from almost 6 years ago, it is impossible to expect a keeper to recall who might have been driving. The defendant therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.

    3. As keeper there was no requirement for me to respond to the brightly colored alarmist notices that appeared to be junk mail in July/August 2011. This was not an offence or fine from an Authority like a council, and there was no reason or obligation as registered keeper to ‘appeal’ to what appeared to be junk mail impersonating a parking ticket yet with no basis in law. A registered keeper could not in any way be legally liable as the law stood at that time. No adverse inference can be drawn from my lawful decision to ignore the colorful letter. (Exhibit 2)
    4. Two further letters where received in 2011 (Exhibits 3, 4) again with the same colorful and threatening appearance, the last letter stated court action was the next step. As no further correspondence was received, the natural conclusion was drawn that these notices were indeed junk mail or some sort of scam.

    5. Having not heard about this matter in years, suddenly in 2016 out of the blue, I received further letters and a court claim, I am no more liable now than I was then (Exhibits 5, 6), but this unwarranted harassment and baseless litigation has caused me significant alarm and distress, during my research I discovered that Excel are issuing robo-claims for archive 'parking charges' in their thousands. It is clear that no checks have been made as to the facts of the alleged contract, signs or parking charge, in their undue haste to issue these claims.

    6. My data from the DVLA was supplied for the single strict purpose of enquiring who was driving, not for storing for five years then suing me as if I can now be held liable, in the hope I will not defend/will have lost the paperwork/will have moved house, or that I will be so scared that I will pay over £260 including the legal insult of five years' interest, for what was apparently an unproven £60 charge, allegedly incurred by another party, if incurred at all.

    7. It is apparent from court records reported in the public domain that this Claimant has been obtaining payments from keepers under false pretenses - using the court as a cheap form of debt collection from the wrong 'registered keeper' parties - and has obtained default CCJs in the hundreds, despite never complying with the POFA 2012 and even bringing pre-POFA cases to the Courts, as here. (Exhibit 7).

    8. The claimant has finally respond to my request made on (DATE), requesting information and relevant contracts with the land owners that allow the claimant to issue claims upon the landowner’s behalf. My request was not actioned appropriately, I received a reply on (DATE) several weeks after I had requested the information and after my defense was submitted, stating the contract was privileged information. (Exhibits 8, 9)

    9. As I have seen no copy of the contract the Claimant has with the landowner to assign the right to enter into contracts with the public, and to make claims and take civil action against drivers in their own name, in 2011. The Claimant can have no locus standi at the time of this parking event, at best they were contractors of a principal, the landowner.

    10. The original PCN posted years ago by this Claimant, Excel Parking Services Ltd (Excel) states 'liability lies with the driver'. (Exhibit 2)
    I believe that the facts stated in this Witness Statement are true.

    Signed

    Dated
    • keepswimming
    • By keepswimming 21st Apr 17, 10:55 AM
    • 78 Posts
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    keepswimming
    revised WS, skeleton to follow, any comments welcome .
    • keepswimming
    • By keepswimming 21st Apr 17, 2:35 PM
    • 78 Posts
    • 61 Thanks
    keepswimming
    Skeleton Argument
    Claim Number *********

    Excel Parking Ltd (Claimant)
    V
    Mr ************ (Defendant)

    1. The date of the alleged contravention occurred before the enactment of Schedule 4 of the Protection of Freedoms Act 2012 (POFA) which took effect from 1st October 2012, therefore the Keeper cannot be held liable in law. (Exhibit 10) The Claimant has stated in its part18 reply (Exhibit 9) that it intends to rely on Elliot v Loake (1982) and Combined parking solutions Ltd V AJH Films Ltd [2015] EWCA Civ 1453, both to wrongly suggest ‘keeper liability’.

    2. The claimant cannot rely on the case of Combined parking solutions Ltd V AJH Films Ltd (CPS V AJH Films). The principle of employers' vicarious liability is long established in English Law (employers are liable for the actions of employees) Nothing of which applies to this case. (Exhibit 12)
    If the owner of a private vehicle was liable for the actions of a driver, Parliament wouldn't have found it necessary to pass POFA and set conditions to pursue the registered keeper. (Exhibit 10)

    3. The claimant cannot rely on Elliot v Loake (1982) to claim that the driver and the keeper can be 'assumed' to be the same, this was a criminal case and referred to the owner, not the keeper. In Elliot v Loake there was overwhelming forensic evidence from other sources that the defendant was the driver at the time. By contrast, in my case this Claimant has not offered any evidence to the driver's identity and cannot make any lawful assumption. (Exhibits 1, 13)

    4. The matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated (at page 13):

    “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass." (Exhibit 14).

    5. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. This claim is founded upon a misrepresentation of facts and misrepresentation of the law. A recent case Excel v Mr Lamoureux C3DP56Q5 Skipton, was found in favour of the defendant on the grounds of ‘no keeper liability’. (Exhibit 15)

    6. In 2012, several months after this alleged parking event, Excel were sanctioned by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in this claim, conduct which was identified in 2012 as 'a significant breach' of their Trade Body Code of Practice with the British Parking Association. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months. (Exhibit 7)

    7. The Beavis case at 96, draws attention to the Code of Practice of the British Parking Association ('the BPA'). And at 111 the Judge helpfully comments that “while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.” (Defendant’s emphasis of the key point).
    (Exhibit 16), (Exhibit 17- ARCHIVE VERSION IN THE PUBLIC DOMAIN, THE 2012 BPA COP (UPDATED IN OCTOBER 2012 AFTER THE POFA)

    8. It is contended that the signs that were in place at the location were unclear and wordy, yet with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract, as was found in many cases involving Excel signs at and around that time.
    In reference to the British Parking Association Code of Practice (CoP), in which it states under appendix B, entrance signage: -
    “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
    "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision"

    As can be seen from the supplied evidence (Photo exhibits P), the signs clearly do not follow this CoP and use Blue, white and yellow which hinder any easy recognition of the actual content of the signs. (Exhibits 17). It is also apparent that the signs at ‘the Square Chorlton-!!!-Hardy are sparse and poorly lit. (Photo exhibits P).

    9. In Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) the judge DJ Lateef's personally visited the site to view the signs in situ, DJ Lateef's damning findings about Excel retail park signage in 2011 included these observations from her visit: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”. The signs were found inadequate and the claim was thrown out. It is contended that the signs here were of a similar low, incoherent standard of overly wordy terms in a blue and yellow design in 2011. (Exhibit 18). Included as evidence is Mr Cutts own published article which is specifically about Excels signs. (Exhibit 19).

    10. It is expected that this Claimant may try to counter that article about these signs but it is worth noting that Mr Cutts manages the Plain Language Commission and is the author of Lucid Law, the Plain English Lexicon and the Oxford Guide to Plain English, so he is something of an authority on clear, legible terms. And the Judge agreed with him.

    11. It is also worth noting that Simon Renshaw-Smith (previously known as 'Captain Clampit') who runs Excel, is in the public domain as having attacked the Judge’s integrity in the Cutts case. The Plain Language Commission's article states that Mr Renshaw-Smith wrote to Stockport MP Andrew Gwynne: “The recent decision by Deputy District Judge Lateef, is an embarrassment to the judicial system. Such an off the wall judgment leads one to question if there was indeed an ulterior motive. DJ Lateef is not fit to serve the Civil Courts.”

    12. No evidence has been provided that a valid ticket was not purchased the Claimant's evidence relies solely on an entry and exit photograph, (Exhibit 2). There is no photograph of the vehicle without a ticket being displayed. The Claimant is suggesting that no ticket was purchased and displayed in the prescribed manner, this is denied, no evidence has been offered that any action by the driver at the time has led to a breach of this purported condition. In order to demonstrate that the driver failed to pay & display, the Claimant has the burden to have evidenced that, with photos and readings from that day from the machines, which are known to be unreliable.

    13. There is also a well-known history of the parking ticket machines at Excel sites failing to record a VRN and this has been recorded in a recent case.
    Excel Parking v Mrs S. C8DP11F9 on 09/09/2016 at Oldham CC. In this case the defendant purchased a ticket, but the machine was faulty and did not print her VRN correctly. The judge ruled in favour of the defendant on the balance of probabilities that she bought her ticket and entered the VRN correctly, only for the machine to erroneously mis-print it. The case was dismissed. (Exhibit 20).

    14. Automatic Number Plate Recognition (ANPR) Accuracy and Usage on ‘the Square Chorlton-!!!-hardy’ is subject to numerous inaccuracies, not only does the car park have a road running through it, there are also two entry points at each end of the road. (Photo exhibits P). The car park and APNR system has caused many issues for people living near the car park that have wrongly received multiple Parking Charge Notices (PCN), along with anyone who unknowingly drives through the car park has also received PCN’s. Any driver at the time of the of the alleged contravention may not have even parked in the car park.

    15. This is a known issue to Excel parking, and evidence of these faults can be found in these two newspaper articles, I would also bring to the courts attention the dates of the articles and the fact one of these dates is around the same time as this alleged contravention. (Exhibits m.e.n).
    Another recent case, Excel v Ms S C8DP13F2 Manchester 03/11/2016. The defendant drove through ‘the Square Chorlton-!!!-Hardy on her way to and from an MOT test centre, Excels ANPR didn’t detect her first exit and second entrance. The judge ruled in favour of the defendant Ms S, as there was compelling evidence the defendants car was at the MOT test centre.

    16. The original PCN (Exhibit 2) posted by this Claimant states a Full Charge of £100.00 (£60.00 discounted), the second two letters from 2011 shows additional cost should they take court action to be court fee £30 and solicitors cost £50 (Exhibit 3, 4). However the Claimant's legal firm now inflates these sums, in a deliberate or negligent attempt at quadruple recovery:

    1. £100.00 Principal debt
    2. Excel’s Initial legal costs £54.00
    3. Interest £33.76
    4. Solicitors fee’s £104.00
    5. Outstanding balance to pay now £262.76
    On their notice of County court claim letter (Exhibit 6) there is a breakdown of cost claimed which is completely different to the actual court claim form (Exhibit 11)

    17. It is my belief that the Claimant's stated indemnity and additional costs are arbitrary and unsubstantiated and are an attempt at double recovery, which cannot be supported on the small claims track. Excel may rely on Chaplair Ltd vs Kumari to justify the additional costs, however Kumari can be fully distinguished from this matter, since that was an irrelevant decision about contractual fees set in lease terms, not 'costs' fabricated by this Claimant several years afterward the event. (Exhibit 21).
    I believe that the facts stated in this Skeleton Defence are true.



    Signed


    Dated
    • keepswimming
    • By keepswimming 21st Apr 17, 2:36 PM
    • 78 Posts
    • 61 Thanks
    keepswimming
    comments welcome
    • Coupon-mad
    • By Coupon-mad 21st Apr 17, 11:58 PM
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    Coupon-mad
    Sorry no time but I've bumped your thread up in case others do.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • keepswimming
    • By keepswimming 22nd Apr 17, 12:01 PM
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    keepswimming
    hi forum, I ve posted WS and skeleton, if anyone has any thoughts feel free to comment, otherwise this is being sent to where it needs to be Monday.

    I m ve got a few bits left between now and when its the grand finale, but when its done and dusted I will post everything I ve submitted in my evidence pack in the form of a pdf's statements, documents, court cases ive referenced, pictures (so you get an idea of what I did) contents pages and how I set out my evidence folder.

    I will post the lot, so people can take the ideas and hopefully I ll win, and anyone else using the info will win too, and these companies will lose a lot.

    good luck forum
    • Coupon-mad
    • By Coupon-mad 22nd Apr 17, 6:26 PM
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    Coupon-mad
    The only thing I didn't see (forgive me if I missed it) was the DVLA FOI as evidence that shows that Excel was banned in 2012 (just before the POFA) for a serious breach of the BPA CoP in suggesting that a keeper is (a) liable in law or (b) responsible for the actions of an unknown driver, or must name that driver.

    I like this point because it shows that Excel were sanctioned in 2012 for EXACTLY what they trying to say in court now. So, I would have as evidence, the FOI request on 'whatdotheyknow':

    https://www.whatdotheyknow.com/request/139931/response/342099/attach/html/2/FOIR3196%20Thorn.pdf.html

    ... the response from the DVLA which confirms that Excel were banned in 2012 from getting data, for a 'serious breach' of the BPA Code of Practice in suggesting that:

    (a) the keeper can be assumed responsible and/or legally obligated to name the driver
    and
    (b) the keeper is liable for a charge (pre-POFA)

    both of which were not true and specifically disallowed. Excel have just waited a few years and are now suing people using the same allegations, in the hope that people and courts are unaware that they were sanctioned/banned for 3 months in 2012 by the DVLA, for saying exactly the same as their flimsy claim is stating now.


    Also did you have any evidence to adduce to show that the car had more than one insured driver at the time, or just to say that more than one family member (or indeed any person with permission and fully comp insurance on another car) could have driven the car that day?
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • keepswimming
    • By keepswimming 23rd Apr 17, 3:05 PM
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    keepswimming
    i appended the point about excel being banned in the WS at point 7 (exhibit 7) I found that info from you in another thread (thank you).

    as for the insurance thing, I ve had named drivers but also several cars and change insurers when the cars have changed (meerkats are always right ) so no documents that I could find, my cars have been used loads over the years by friends and family as long as they have there own insurance.

    should I be trying to fit the above in somewhere?
    • keepswimming
    • By keepswimming 23rd Apr 17, 3:08 PM
    • 78 Posts
    • 61 Thanks
    keepswimming
    also in skeleton at point 6 I ve mentioned about excel being banned by dvla.
    • Coupon-mad
    • By Coupon-mad 23rd Apr 17, 3:47 PM
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    Coupon-mad
    as for the insurance thing, I ve had named drivers but also several cars and change insurers when the cars have changed, so no documents that I could find, my cars have been used loads over the years by friends and family as long as they have there own insurance.
    Yes, state that.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • DoaM
    • By DoaM 23rd Apr 17, 8:00 PM
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    DoaM
    also in skeleton at point 6 I ve mentioned about excel being banned by dvla.
    Originally posted by keepswimming
    When did that happen?
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • keepswimming
    • By keepswimming 23rd Apr 17, 8:19 PM
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    keepswimming
    ref dvla ban see link at post 91 just above
    • keepswimming
    • By keepswimming 23rd Apr 17, 8:22 PM
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    • 61 Thanks
    keepswimming
    ok so I ve added and edited point 2 in the witness statement it now reads:

    2. It is admitted that I was the registered keeper of the vehicle concerned, but the defendant denies being the driver at the time of the supposed event. There is no evidence of the driver and as this event has been resurrected from almost 6 years ago, it is impossible to expect a keeper to recall who might have been driving. In the last 6 year’s I have had several cars and changed insurers when the cars have changed, so no documents that relate to that time can be found. I have had named drivers, but my cars have been used frequently over the years by friends and family as long as they had their own insurance.
    The defendant therefore puts Excel to strict proof that any contract can exist between the Claimant and themselves.



    thoughts please
    • Loadsofchildren123
    • By Loadsofchildren123 23rd Apr 17, 8:40 PM
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    Loadsofchildren123
    You don't need to file your skeleton yet.
    The Skeleton is supposed to be a summary of your case, bringing together your defence and your evidence, cross referenced to the claim and their evidence, and cross referenced to the page numbers in the trial bundle which the Claimant has to prepare (in my case they had to do the court bundle 7 days before the final hearing). It's supposed to save court time because it largely replaces the need for you to make oral submissions. Outside of the small claims track Skeletons are ordered to be filed as standard, anything between 7 and 3 days prior to the final hearing. It makes your job easier on the day.

    So concentrate on your WS and leave the Skeleton to one side and perfect that later.
    • keepswimming
    • By keepswimming 23rd Apr 17, 9:28 PM
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    keepswimming
    I thought that was the case with the skeleton, and I can just submit the WS and evidence as is, I have evidenced everything in the bundle to date in the WS and skeleton and indexed the lot. I was going to submit the lot, then go through their evidence if they send it and argue it at the hearing.
    I could hold out on the sending the skeleton until the last week and add stuff when they send theirs, not sure which is best.
    • Loadsofchildren123
    • By Loadsofchildren123 23rd Apr 17, 10:47 PM
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    Loadsofchildren123
    I could hold out on the sending the skeleton until the last week and add stuff when they send theirs, not sure which is best.
    Originally posted by keepswimming
    This one.
    If there is provision in your directions order/timetable for the C to file and serve a trial bundle [usually 7] days before the hearing, wait for that to come then make the references in your Skeleton references to the page numbers in that bundle - that's the bundle the court will use on the day of the hearing. You want your cross-referencing to refer to the bundle the judge will be using.
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