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Ignore or not?, Time to try to settle this
southpaw82
post Thu, 30 May 2013 - 21:18
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Right, I'm getting a bit tired of the ignore/don't ignore argument breaking out in advice threads. So, thrash it out here. This thread will remain a sticky until I'm happy we've come to some sort of consensus.
Please don't have the argument in advice threads. If necessary point new OPs to this thread to make up their own minds.


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post Thu, 30 May 2013 - 21:18
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nigelbb
post Thu, 6 Jun 2013 - 18:18
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I don't think that any admission as to who the driver is/was should be made unless absolutely necessary. As I pointed out in another thread earlier today the proper response for a company or lease car is for the keeper (as defined by POFA) to be named not the driver. The RK of a company or lease car cannot know who the driver was only the keeper. Neither the keeper nor the RK is required to name the actual driver & it would be quite wrong for any judge to draw any negative conclusion from a failure to name the driver.

Whether the PPC knows the identity of the driver or not isn't the most important part of a defence as the main points to be made in court are whether the PPC can enter into a contract and whether the charges are a penalty or not etc However the uncertainty over the actual driver gives a tactical advantage especially as all the PPCs seem to find it impossible to abide by all the requirements POFA necessary to invoke keeper liability.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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matt285
post Thu, 6 Jun 2013 - 19:09
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QUOTE (nigelbb @ Thu, 6 Jun 2013 - 19:18) *
I don't think that any admission as to who the driver is/was should be made unless absolutely necessary. As I pointed out in another thread earlier today the proper response for a company or lease car is for the keeper (as defined by POFA) to be named not the driver. The RK of a company or lease car cannot know who the driver was only the keeper. Neither the keeper nor the RK is required to name the actual driver & it would be quite wrong for any judge to draw any negative conclusion from a failure to name the driver.

Whether the PPC knows the identity of the driver or not isn't the most important part of a defence as the main points to be made in court are whether the PPC can enter into a contract and whether the charges are a penalty or not etc However the uncertainty over the actual driver gives a tactical advantage especially as all the PPCs seem to find it impossible to abide by all the requirements POFA necessary to invoke keeper liability.


You're correct - but (as I pointed out in another thread earlier today as well) the only point I have is that if I were the PPC and would have the choice of continuing to pursue a company (as RK) or an individual (who purports to be the "keeper" under POFA but refuses to acknowledge he is the "driver") then I would tend to continue pursuing the company since they are more likely to get annoyed and just pay up.

So unless the PPC is forced by law to accept the acknowledgement (as in the case of someone acknowledging they are the driver) then they may be tempted to not accept the "keeper" statement on the basis that the POFA says "unless it is proved otherwise".

Especially for a hire, company or courtesy car situation it may thus be better to acknowledge who the driver is thus clearly getting the registered keeper out of the loop. Of course this is giving up this point should it proceed to court, but to be honest there's so many other points that the PPC will not be able to establish, I wouldn't worry too much about this one.
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Jlc
post Fri, 7 Jun 2013 - 08:43
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QUOTE (nigelbb @ Thu, 6 Jun 2013 - 19:18) *
Whether the PPC knows the identity of the driver or not isn't the most important part of a defence as the main points to be made in court are whether the PPC can enter into a contract and whether the charges are a penalty or not etc However the uncertainty over the actual driver gives a tactical advantage especially as all the PPCs seem to find it impossible to abide by all the requirements POFA necessary to invoke keeper liability.

That should be the case but (I don't want to say too much right now) we need to see how the courts are actually going to process RK claims.

The PPC's will obviously push the fact that the RK has chosen not to name the driver and therefore the RK is 'liable'. As the RK is (allegedly) prepared to hide the identity of the driver then the RK could be perceived as the 'bad guy' by the judge. The PoFA might be interpreted as an instrument to just collect the NtK amount...? (+costs)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nigelbb
post Fri, 7 Jun 2013 - 09:24
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QUOTE (Jlc @ Fri, 7 Jun 2013 - 09:43) *
QUOTE (nigelbb @ Thu, 6 Jun 2013 - 19:18) *
Whether the PPC knows the identity of the driver or not isn't the most important part of a defence as the main points to be made in court are whether the PPC can enter into a contract and whether the charges are a penalty or not etc However the uncertainty over the actual driver gives a tactical advantage especially as all the PPCs seem to find it impossible to abide by all the requirements POFA necessary to invoke keeper liability.

That should be the case but (I don't want to say too much right now) we need to see how the courts are actually going to process RK claims.

The PPC's will obviously push the fact that the RK has chosen not to name the driver and therefore the RK is 'liable'. As the RK is (allegedly) prepared to hide the identity of the driver then the RK could be perceived as the 'bad guy' by the judge. The PoFA might be interpreted as an instrument to just collect the NtK amount...? (+costs)

If the NTK etc is invalid or out of time the PPC cannot pursue the keeper - end of story. POFA places no obligation on the keeper to name the driver. It's not like a speeding ticket. If the PPC is unwise enough to take a keeper to court when they have failed to comply with the requirements of POFA vis a vis keeper liability then they are bound to fail. This is a small claims court with a proper judge & while the judgements may vary they are not going to be arbitrary like the decisions of magistrates. If the law says that they must jump through these hoops so that they can pursue the keeper for unpaid parking charges then if they don't jump through the hoops they will lose. I am sure that the PPCs would love for the keeper to be automatically liable for their invoice but that isn't the law they got & their wishful thinking won't make it so.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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Jlc
post Fri, 7 Jun 2013 - 10:38
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Indeed, my starting assumption is that all the requisite conditions to pursue the RK has been met. Pursuing the RK 'old school' obviously means that the PPC should have to demonstrate they have the driver as the only individual that could form the contract and thus breach it. (A weak defence in itself of course)

Following PoFA though we wouldn't want to read this:

QUOTE
The court accepted that the defendant had failed to notify the Claimant of the details of the driver of the vehicle at the time of the infringement and accordingly became liable to the Claimant for the parking charge.


...that is not the intention of the legislation?

Parking charge is defined as:

(a)in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and
(b)in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,

So this hurdle still has to be cleared if defended properly. (i.e. the charge is not a penalty)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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nigelbb
post Fri, 7 Jun 2013 - 11:07
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That quote is only PE's spin on winning a court case post-POFA. We don't know the details or even whether the keeper defended the case. Perhaps a Cornish reader could keep an eye out for reports in the local paper?

QUOTE
ParkingEye, in their first County Court Hearing since the arrival of Keeper Liability and the Protection of Freedoms Act, gained a resounding win. In a case that was heard at Truro Combined County Court Centre on the 31st of May, District Judge Thomas ordered the defendant to pay ParkingEye the £100 Parking Charge as well as costs that amounted to a further £255 (£355 in total).

The court accepted that the defendant had failed to notify the Claimant of the details of the driver of the vehicle at the time of the infringement and accordingly became liable to the Claimant for the parking charge.

ParkingEye would like to thank LPC – who attended the court on behalf of ParkingEye – for their successful work on this matter.


If the purpose of the legislation had been to force the keeper to name the driver (like for a speeding ticket) or to have strict keeper liability (like a proper council parking charge) then in would say as much.


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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Jlc
post Fri, 7 Jun 2013 - 11:31
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Indeed, I was trying not to give PE any 'publicity'. wink.gif

Of course we don't know any details of this 'resounding victory' other than it was a pyrrhic one and it was probably a 'I was not the driver defence' which, alone, would generate that quote. But it's a frightening thought that loads of cases will still be won on this point.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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bama
post Fri, 7 Jun 2013 - 13:41
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QUOTE
If the purpose of the legislation had been to force the keeper to name the driver (like for a speeding ticket) or to have strict keeper liability (like a proper council parking charge) then in would say as much

It doesn't and it was never going to. The State can't interfere in these private contracts.
QUOTE
Parking charge is defined as:

(a)in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and
(b)in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,

So this both of these hurdles still hasve to be cleared if defended properly. (i.e. the charge is not a penalty and there is a relevant obligation

fixed that for you smile.gif


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Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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Jlc
post Fri, 7 Jun 2013 - 14:04
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I'm playing devil's advocate of course - but it will be interesting to see how more of these claims pan out...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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southpaw82
post Fri, 7 Jun 2013 - 14:54
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QUOTE (bama @ Fri, 7 Jun 2013 - 14:41) *
The State can't interfere in these private contracts.


Of course it can. However, it chose not to.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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kirkbyinfurnessl...
post Tue, 11 Jun 2013 - 11:40
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i think having now seen some paper work and given one court case

We must advise ALL users to reply to PPC Tickets

Every single one. I have changed my tune , yes but i dont think we can take a risk now


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www.parkingticketappeals.org.uk
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M267
post Tue, 11 Jun 2013 - 16:04
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QUOTE (anon45 @ Fri, 31 May 2013 - 16:17) *
QUOTE (nigelbb @ Fri, 31 May 2013 - 11:33) *
WRT cases taken to court after a POPLA appeal is lost I can't believe that county court judges will be unduly swayed by POPLA's biased reasoning when it is revealed that the "independent" assessor who ruled in favour of the PPC is a moonlighting law student. Until POPLA is put on a statutory basis like PATAS it's always going to be very easy to portray it as the biased kangaroo court of a trade body that lacks credibility or independence.


I agree that courts *ought* not to place any great weight on a ruling of a 'biased kangaroo court', although one never knows, but this is precisely why I consider it to be very unlikely that a court will penalise a defendant for having 'failed to appeal to POPLA' or even ignored the PPC altogether.

I also agree with chippy365 that there are plenty of other reasons besides 'absence of landowner contract' (such as punitive charges) as to why the appeal *ought* to be upheld, but note that POPLA seems to be (at least usually) rejecting these reasons so they aren't much use at POPLA. It wouldn't surprise me if the BPA starts telling its members to supply copies of the landowner contract to POPLA in order to "win", in which case even Pepipoo defences are unlikely to succeed at POPLA, even though they would succeed in court.

Some OPs might be terrified by the prospect of 'debt collectors' and endless threatograms, and these should indeed be advised to appeal; however, many others are happy to ignore all this, and the latter should not be scared into creating unnecessary work for themselves by wasting time in appealing.

A tiny number of PPCs may be dragging out old invoices for speculative court action in the hope of obtaining a default judgment; the chances of this remain very remote indeed; most of these old invoices would not have been eligible for a POPLA appeal in any case due to pre-dating October 2012, and in my view this alone is not a compelling reason to appeal.

Many posters suggest that appealing to POPLA will reduce the workload; if a case is appealed and lost, then a motorist may well end up not only being taken to court (example: http://forums.pepipoo.com/index.php?showtopic=79002) If so, the 'onslaught of cases' has merely been delayed rather than stopped, and the motorist is probably in a weaker position than if he or she had ignored the invoice in the first place. The linked thread also illustrates that Vinesh Patel is mistaken when he says that every single case on Pepipoo at the moment involves 'ignorers'.

I look forward to emanresu's promised post in due course; I am feeling rather lonely in suggesting that POPLA is not the 'magic bullet' it is seemingly being portrayed as.

The advice has already changed in response to changing PPC tactics; from 'ignore' to 'ignore or appeal depending on circumstances', and I consider this to be sufficient. I don't recall anyone saying that "Parking Eye never do court"; certainly not since they claimed thousands of pounds from a defendant and were awarded £15+ court costs (all pre-POPLA).


Have any weak defences been deliberately submitted to POPLA to see if the PPC ultimately takes it to court ?
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matt285
post Tue, 11 Jun 2013 - 20:01
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QUOTE (kirkbyinfurnesslad @ Tue, 11 Jun 2013 - 12:40) *
i think having now seen some paper work and given one court case

We must advise ALL users to reply to PPC Tickets

Every single one. I have changed my tune , yes but i dont think we can take a risk now


I think it would help if you explain what you're referring to in this post.

To me this sounds like you're trying to say that a judge said that ignoring letters is inappropriate. The details of which I'd like to hear about... wink.gif
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Salmosalaris
post Wed, 12 Jun 2013 - 06:32
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Appealling the ticket and then POPLA is a no cost , no risk exersise if done well and with advice from here . The danger of leaving it until a court claim arrives is posters then see the risk of losing a significant amount of THEIR money and panic .In my opinion those that advise an OP to ignore ,and if an OP follows that advice only to receive a court claim , should roll their sleeves up and get stuck in helping the OP dig themselves out of the mess that poor advice created.

PE chucked out 600000 pcn's last year . If everyone of those was taken to Popla that would cost PE 16 million quid just for the initial cost let alone the office time and paperwork dealing with them .
Why do you think PE want to increase the 35 day limit ?
Why do you think they are clogging up the boards with court claims ?

The route to reducing their profit is as many POPLA appeals as possible.

This post has been edited by Salmosalaris: Wed, 12 Jun 2013 - 06:37


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axeman
post Wed, 12 Jun 2013 - 07:00
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QUOTE (kirkbyinfurnesslad @ Tue, 11 Jun 2013 - 12:40) *
i think having now seen some paper work and given one court case

We must advise ALL users to reply to PPC Tickets

Every single one. I have changed my tune , yes but i dont think we can take a risk now


Having now seen dozens of paper trails off forum I agree 100%


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thevaliant
post Wed, 12 Jun 2013 - 12:22
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Is there any consideration of also (as part of an appeal), appealing to the landowner in the case where its a retail/supermarket car park?

If, for instance, I got one in my local Tesco, my first port of call would be a call to Tesco along the lines of:
"I was shopping at your store. My clubcard number is XXX. As you can see, I spend £x,xxx per year at your stores. If you want any further business from me, get this charge cancelled now."

Is this worthwhile adding as advice?
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Jlc
post Wed, 12 Jun 2013 - 12:37
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QUOTE (thevaliant @ Wed, 12 Jun 2013 - 13:22) *
Is this worthwhile adding as advice?

Absolutely - any possibility of getting it cancelled early is definitely recommended - especially as a 'genuine shopper' (or ex-'genuine shopper' wink.gif )

It depends on the store and the landowner - some supermarkets do have the power but on some retail parks they do not.

This post has been edited by Jlc: Wed, 12 Jun 2013 - 12:36


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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ManxRed
post Thu, 13 Jun 2013 - 13:16
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QUOTE (M267 @ Tue, 11 Jun 2013 - 17:04) *
Have any weak defences been deliberately submitted to POPLA to see if the PPC ultimately takes it to court ?


Yes. Someone aimed one directly at UKCPS, I believe they are still waiting for the court claim.


--------------------
Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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matt285
post Thu, 13 Jun 2013 - 21:15
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QUOTE (Salmosalaris @ Wed, 12 Jun 2013 - 07:32) *
In my opinion those that advise an OP to ignore ,and if an OP follows that advice only to receive a court claim , should roll their sleeves up and get stuck in helping the OP dig themselves out of the mess that poor advice created.


Not that I was one of them -- but I'd be happy to get more involved than just posting and help out. Not sure how this is organised though, but if there's demand then I'm happy to be PM'd (however I'm on hols next week).
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kirkbyinfurnessl...
post Thu, 13 Jun 2013 - 21:17
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QUOTE (ManxRed @ Thu, 13 Jun 2013 - 14:16) *
QUOTE (M267 @ Tue, 11 Jun 2013 - 17:04) *
Have any weak defences been deliberately submitted to POPLA to see if the PPC ultimately takes it to court ?


Yes. Someone aimed one directly at UKCPS, I believe they are still waiting for the court claim.


Yes am still waiting lol


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www.parkingticketappeals.org.uk
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