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  • FIRST POST
    • Kas22
    • By Kas22 20th Nov 17, 10:45 PM
    • 35Posts
    • 13Thanks
    Kas22
    Gladstones - Technical defence against PCM
    • #1
    • 20th Nov 17, 10:45 PM
    Gladstones - Technical defence against PCM 20th Nov 17 at 10:45 PM
    Hi All,

    Having looked over the site I can't seem to find any thread where there has been a post on technical dispute, unless I'm being sheer ignorant to searching (I apologise).

    To cut a long story short, I was issued an unjust ticket by PCM (those ex-clampers) stating I was "Parked within a restricted area" even though that wasn't the case as where the car was parked was not part of the controlled parking zone.

    Where the vehicle was parked used to be a shed for bicycle storage, so was not officially part of the car park, or the controlled area.
    The notice did not specify parking was inclusive of the area the vehicle was parked at and specified
    "Vehicles must be parked with a valid parking permit fully displayed within the windscreen and parked wholly within the confines of a marked bay appropriate for the permit on display..."

    I disputed this with PCM but received generic responses. I then took it to IAS who were also as useless as PCM (also found this out by reading threads on here and on pepipoo). I then started receiving letters from TRACE debt recovery which I ignored... and more recently I received a letter from Gladstones.

    Up to the point of disputing with PCM and the letters received from the debt recover firm, I was in touch with BMPA (British Motorists' Protection Association) who were very helpful... However BMPA cannot assist me any further as the claim is based on a technical defence and what my interpretation of the sign was. I therefore turn to yourselves for some help and guidance.

    The question is, should I respond with a template based on the following thread that @coupon-mad wrote /showthread.php?p=73401300#post73401300, or will this require some more thought?

    I am happy to see this through to court as I will not let them get money out of me on such grounds.

    Any help or advice on this matter would be greatly appreciated.
    I will post links to images once I am approved to do so.
Page 3
    • IamEmanresu
    • By IamEmanresu 2nd Jul 18, 1:11 AM
    • 2,715 Posts
    • 4,714 Thanks
    IamEmanresu
    To save everyone faffing around between two threads here is the OP's first attempt at a defence.

    -------------------------------------------------------------- Statement of Defence

    In the County Court Business Centre
    Claim Number: XXXXXXX

    Between:

    Parking Control Management vs. XXXX

    DEFENCE

    Preliminary

    1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand their Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

    1.1 The Claimant!!!8217;s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

    1.2 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    2.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

    2.2 The Defendant undertook to appeal the unwarranted parking charge in all good faith, in the hope of resolving the dispute, including what was described by the Claimant as an 'independent' review by the Independent Appeals Service (IAS). There is no scrutiny board and IAS decisions in the public domain blatantly disregard recognised standards of law or justice and shift the burden to the consumer to prove matters outside of their knowledge and evidence, causing a significant imbalance in the rights and interests of consumers, contrary to the Consumer Rights Act 2015.

    2.3 The Defendant has discovered that the Claimant's Trade Body, the Independent Parking Committee (IPC), is an organisation operated by the same Directors as are/were recorded at Gladstones Solicitors, at least until very recently. They - John Davies and Will Hurley - are also responsible for the IAS.

    2.4 The Defendant now submits that the IAS 'decision' should be disregarded; it is ostensibly described as an appeal service, yet the Assessors' names remain secret. No figures or reports are published by the IAS but the publication 'Parking Review' reported that only 20% of appeals were upheld (compared to POPLA where 50% have consistently been upheld since its inception in 2012). It is unsurprising then, given the relationship between the parties, that the IAS rejected the Defendant's appeal.

    2.5 Now the Defendant notes that Gladstones are employed in bringing this claim, demonstrating a clear conflict of interests.

    Background

    3) It is admitted that at all material times the Defendant was the owner of the vehicle in question.

    4) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

    5) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

    6) It is admitted that the Defendant parked the vehicle on the material date, whilst residing at the private residential property. It is denied that there was any relevant obligation upon the Defendant that can have been breached. The Defendant did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.


    Authority to Park and Primacy of Contract

    7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the Lease/Tenancy Agreement does permit the parking of vehicle(s) on this land. The Defendant believes there was an absolute entitlement to park at the specific area, outside of the car park, which cannot be fettered by any alleged parking terms.

    8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    9) The Defendant avers that the Claimant cannot:

    (i) override the existing rights enjoyed by residents and their visitors, or
    (ii) decide to add/remove parking bays from use by residents

    9.1 Parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

    9.2 No contract and no breach - this area has never been ''designated'' nor was it marked as such.

    10) It is denied that the vehicle was !!!8220;parked inside of a designated area!!!8221;. The Defendant parked legitimately in the area, used without penalty for many years by various residents at the site.

    11) This Claimant has only in recent months, begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

    12) There is no site plan of the area makred as a bay in existence, If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority this particular bay has been decided to be 'designated' after many years of normal use by residents, and how this change of use was communicated to residents and/or agreed.

    13) Other residents also routinely park their vehicles in this area. As there is no site plan identifying the parking area, the Defendant concludes that given the fact that there is no site plan, the Claimant is not entitled, nor has any locus standi to decide that the area becomes 'designated' as opposed to any other.

    14) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in that space for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.

    15) It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.

    16) The Defendant relies upon ParkingEye Ltd v Beavis, insofar as the Court were only willing to exempt a parking charge from falling foul of the penalty rule which would normally render it unrecoverable, in the context of a site of commercial value, it being a 'complex' case where the driver was a visitor with no prior licence or rights, and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

    16.i The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    16ii. At the time of the material events the area was not within the remit of the parking zone.

    16.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. In fact, the existing rights of residents should have been protected.
    16.3 Shortly after the ticket was issued, the controlled parking zone was removed.
    Wholly unreasonable and vexatious claim

    17) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

    18) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against residents, alleging 'debts' for parking at their own homes is not something the Courts should be seen to support.

    19) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

    20) There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here:
    ttps://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

    21) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

    22) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    Signed

    Date
    About me: Capricorn. Likes: Tight defences, the tighter the better. Lucidity. Dislikes: Loquaciousness and magic words. WLTM: Someone with the facts, a private income and their own copy of the White Book.
    • IamEmanresu
    • By IamEmanresu 2nd Jul 18, 1:14 AM
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    IamEmanresu
    Might I suggest you take out any allegation that you cannot prove and complaints you cannot substantiate and concentrate on what you can prove via your lease / site map.

    The issue appears to boil down to what is the communal area and how much of it is controlled by PCM.
    About me: Capricorn. Likes: Tight defences, the tighter the better. Lucidity. Dislikes: Loquaciousness and magic words. WLTM: Someone with the facts, a private income and their own copy of the White Book.
    • Kas22
    • By Kas22 2nd Jul 18, 10:00 AM
    • 35 Posts
    • 13 Thanks
    Kas22
    Can you please post your Defence on this thread.

    All discussion on one incident should be on the one thread. Thanks.


    What is the Date of Issue on your Claim Form?
    Originally posted by KeithP

    Issue date on the form is the 8th June, so ideally I would like to send the defence in the next couple of days
    • Kas22
    • By Kas22 2nd Jul 18, 10:01 AM
    • 35 Posts
    • 13 Thanks
    Kas22
    Might I suggest you take out any allegation that you cannot prove and complaints you cannot substantiate and concentrate on what you can prove via your lease / site map.

    The issue appears to boil down to what is the communal area and how much of it is controlled by PCM.
    Originally posted by IamEmanresu

    Thanks. Will go over it today and add/remove what I can/cannot prove.
    • Coupon-mad
    • By Coupon-mad 2nd Jul 18, 10:04 AM
    • 59,444 Posts
    • 72,590 Thanks
    Coupon-mad
    PCM (those ex-clampers) stating I was "Parked within a restricted area" even though that wasn't the case as where the car was parked was not part of the controlled parking zone.

    Where the vehicle was parked used to be a shed for bicycle storage, so was not officially part of the car park, or the controlled area.
    Sounds a dodgy argument to rely on. In a residential site the common areas will be - pretty much everywhere, except if there are bays owned by people who have opted out (lucky them).

    Was this bike store enclosed, like a garage/separate outdoor building with no signs on the walls inside? Or was the bike store demolished and this was just a scrub-land corner area?
    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.

    • Kas22
    • By Kas22 2nd Jul 18, 10:11 AM
    • 35 Posts
    • 13 Thanks
    Kas22
    Sounds a dodgy argument to rely on. In a residential site the common areas will be - pretty much everywhere, except if there are bays owned by people who have opted out (lucky them).

    Was this bike store enclosed, like a garage/separate outdoor building with no signs on the walls inside? Or was the bike store demolished and this was just a scrub-land corner area?
    Originally posted by Coupon-mad

    The outbuilding was demolished several years ago and it's just a scrub-land corner area. I have photographs of when the outdoor building was still there. I would have assumed that it was not part of the residential parking area?
    • Coupon-mad
    • By Coupon-mad 2nd Jul 18, 10:37 AM
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    Coupon-mad
    I wouldn't.

    What makes you think an old bike store area is outside of the common areas?

    Your better argument might be if the entire corner has no signs anywhere near it and it is marked differently on the tarmac or has other signs up that conflict.
    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.

    • Kas22
    • By Kas22 2nd Jul 18, 11:45 AM
    • 35 Posts
    • 13 Thanks
    Kas22
    Well, the bike store area isn't part of the parking area as it's desginated for flat residents with X number of spots allocated to a certain number of flats.



    The corner where the bike store area was isn't marked with any signs, and was seperated from the car park by curbs and slabs with a concrete surface.



    Looking at it, it appears as if it isn't part of the parking area with a clear divide by the raised curbs and different surface.
    • Coupon-mad
    • By Coupon-mad 2nd Jul 18, 12:01 PM
    • 59,444 Posts
    • 72,590 Thanks
    Coupon-mad
    The corner where the bike store area was isn't marked with any signs, and was seperated from the car park by curbs and slabs with a concrete surface.

    Looking at it, it appears as if it isn't part of the parking area with a clear divide by the raised curbs and different surface.
    That's better! That explains it more reasonably and you need to make this clear.

    And that goes into your defence, remove some of the waffle and replace it with facts that suggest there was no contract or licence to park there, and at best the driver was a trespasser (a matter only for a landowner, not something for which a private parking firm can dress up a contractual 'charge' in excess of any damages caused in tort).
    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.

    • Kas22
    • By Kas22 2nd Jul 18, 12:04 PM
    • 35 Posts
    • 13 Thanks
    Kas22
    Okay thanks. I'll go over the defense and remove some of the waffle and replace with the facts.
    • KeithP
    • By KeithP 2nd Jul 18, 12:12 PM
    • 8,000 Posts
    • 7,866 Thanks
    KeithP
    Issue date on the form is the 8th June, so ideally I would like to send the defence in the next couple of days
    Originally posted by Kas22
    Then you have until 4pm on Wednesday 11 July 2018 to file your Defence.

    Over a week away.

    When you are happy with the content, your Defence should be filed via email as described here:

    1) print your Defence
    2) sign it
    3) scan the signed document back in and save it as a pdf.
    4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    .
    • Kas22
    • By Kas22 2nd Jul 18, 12:15 PM
    • 35 Posts
    • 13 Thanks
    Kas22
    Then you have until 4pm on Wednesday 11 July 2018 to file your Defence.

    Over a week away.

    When you are happy with the content, your Defence should be filed via email as described here:

    1) print your Defence
    2) sign it
    3) scan the signed document back in and save it as a pdf.
    4) send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    Originally posted by KeithP

    Got it, thanks. Is it also worth sending out in letter format?
    • Coupon-mad
    • By Coupon-mad 2nd Jul 18, 12:19 PM
    • 59,444 Posts
    • 72,590 Thanks
    Coupon-mad
    No, waste of time.
    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.

    • KeithP
    • By KeithP 2nd Jul 18, 12:19 PM
    • 8,000 Posts
    • 7,866 Thanks
    KeithP
    I wouldn't bother.

    Others may well have a different opinion.
    .
    • Kas22
    • By Kas22 6th Jul 18, 4:33 PM
    • 35 Posts
    • 13 Thanks
    Kas22
    Right, below is a section of the changes I've made (highlighted) by adding facts and removing the waffle:

    7) It is denied that the Defendant was in breach of any parking conditions or was not permitted to park, in circumstances where the parking agreement does permit the parking of vehicle(s) on this land. The Defendant believes there was an absolute entitlement to park at the specific area, outside of the car park, which cannot be fettered by any alleged parking terms.

    8) It is not admitted that the Claimant has contractual or other lawful authority to make contracts with residents at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the land owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

    9) The Defendant avers that the Claimant cannot:
    (i) override the existing rights enjoyed by residents and their visitors, or
    (ii) decide to add/remove parking bays from use by residents

    10) No contract and no breach - this area has never been ''designated'' nor was it marked as such

    11) The area at which the vehicle was parked at was a disassembled bike store which doesn!!!8217;t form part of the designated parking location for residents.
    (i)The entire corner has no signs anywhere near it and it is marked differently by a raised surface, slabs and different concrete surface to the care park. There is a clear distinction of separation between the car park and the corner.(ii) The corner has no parking numbers allotted to it

    12) It is denied that the vehicle was !!!8220;parked inside of a designated area!!!8221;. The Defendant parked legitimately in the area, used without penalty for many years by various residents at the site.

    13) This Claimant has only in recent months, begun a predatory parking regime targeting residents and has unilaterally attempted to foist upon residents a change of rules, in complete disregard to any existing rights and grants; the Claimant being a stranger to the various residents' Agreements. No variation of residents' Agreements has taken place and any such variation would be solely a matter between the landowner and the resident, in any case.

    14) There is no site plan of the bay in existence, If such a plan now exists, the Claimant is put to strict proof of its origin and on what basis/on whose authority this particular bay has been decided to be 'designated' after many years of normal use by residents, and how this change of use was communicated to residents and/or agreed.

    15) Other residents also routinely park their vehicles in this area. As there is no site plan identifying the parking area, the Defendant concludes that, given the fact that there is no site plan, the Claimant is not entitled, nor has any locus standi to decide that one bay is 'designated' as opposed to any other.

    16) The Defendant denies any separate contract with the Claimant in respect of parking arrangements. The Claimant has offered nothing by way of consideration, given the primacy of contract enjoyed by residents who already have rights of way, and have been parking in that space for years and have a reasonable expectation to continue to do so, free of harassment, predatory conduct and 'parking charges'.

    17) It is denied that there was any breach of contract or of any relevant parking terms. The Claimant's claim is wholly misconceived.

    18) The Defendant avers that there was no specific parking signage in this matter, without prejudice to his/her primary defence above.
    18.1. At the time of the material events the area was not within the remit of the parking zone.
    18.2. Shortly after the ticket was issued, the controlled parking zone was removed due to residential uproar.
    As again, any feedback thus far has been greatly appreciated and I thank you all for your help.
    Last edited by Kas22; 07-07-2018 at 7:54 AM.
    • Coupon-mad
    • By Coupon-mad 7th Jul 18, 12:23 AM
    • 59,444 Posts
    • 72,590 Thanks
    Coupon-mad
    dissemble:
    conceal or disguise one's true feelings or beliefs.
    I think you mean:

    disassembled
    take (something) to pieces.
    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.

    • Kas22
    • By Kas22 7th Jul 18, 7:56 AM
    • 35 Posts
    • 13 Thanks
    Kas22
    That is exactly what I meant, but somehow wrote the other! Updated!


    Does the defence look worthy of being sent?
    • The Deep
    • By The Deep 7th Jul 18, 8:25 AM
    • 9,691 Posts
    • 9,525 Thanks
    The Deep
    Dissemble, diplomatic language for lying through one's teeth.
    You never know how far you can go until you go too far.
    • Coupon-mad
    • By Coupon-mad 7th Jul 18, 9:55 PM
    • 59,444 Posts
    • 72,590 Thanks
    Coupon-mad
    18.2. Shortly after the ticket was issued, the controlled parking zone was removed and the Claimant fired from the location, due to residential uproar against the predatory regime which no resident had agreed to. The Claimant can have no excuse of 'commercial justification' from the landowner, in setting out to sue residents on the excuse of their back-catalogue of rogue tickets from a site where they have been removed. This appears to be a revenge claim to try to make some money from a lost cause site where they no longer act with any authority. However, it was stated in the Beavis* case that a parking charge cannot be pursued merely to punish the driver. This is the epitome of an 'unconscionable' and unrecoverable penalty, as envisaged by the Supreme Court when they made it clear that the penalty rule applies to all parking charge cases, and can only be disengaged under certain compelling circumstances.

    *You have still got the Beavis case in a numbered point higher up, have you?
    Last edited by Coupon-mad; 07-07-2018 at 9:59 PM.
    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.

    • Kas22
    • By Kas22 9th Jul 18, 2:09 PM
    • 35 Posts
    • 13 Thanks
    Kas22
    *You have still got the Beavis case in a numbered point higher up, have you?
    Originally posted by Coupon-mad

    No. I've removed all references to other cases.
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