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Mil Judgement
Hexx
post Mon, 19 Mar 2018 - 11:41
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Good Morning. I used to post on here as farmerboy but had to drop out for personal reasons a year back and havent been able to log back in with my old details so Im starting over. A friend has received a judgment from Mil Collections. She received a non compliant LBA in December but never received the claim form only the judgement. I am putting the defence together and will submit the N244 form this friday and the £255 set aside fee.

1. Do I include with the N244 at this stage any other documents eg the D Dunsford email from Feb 2017 re: date Protection and Kadoe Breach or is this for later? Is it just a paragraphed defence with nothing else at this stage?

2. foi@dvla.gsi.gov.uk. Is this the correct address to complain to the DVLA?

3. How do I go about wording the retrieval of the £255 from the court or Mil?

4. Should I contact Mil referencing Champerty and Maintance and asking for the signed and dated Deed of Assignment between them and Llawnroc Parking and their permission from the DVLA that has allowed them to pursue my friend?

Thanks in advance.
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post Mon, 19 Mar 2018 - 11:41
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nosferatu1001
post Tue, 1 May 2018 - 13:30
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Until your set aside is granted they CAN still enforce judgement. You will need to instruct MIL to cease any collectyion actiity until the hearing, as any attempt to recover monies while a set aside application is in place would be unreasonable behaviour.

Ensure your draft order is reviewed - you want that MIL discontinuing should hurt them!
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Hexx
post Tue, 1 May 2018 - 13:51
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Yes, I should have said that Im drafting a letter to MIL re: their unreasonable behaviour as well. I will put up the draft order when I return home later this evening. Thanks again.
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nosferatu1001
post Tue, 1 May 2018 - 14:40
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No, this is not about their PREVIOUS unreasonable behaviour
This is stating they must CEASE any collection as tehre is a set aside application in place, so enforcing a judgement now would be premature and ITSELF unreasonable
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Hexx
post Tue, 1 May 2018 - 14:51
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QUOTE (nosferatu1001 @ Tue, 1 May 2018 - 15:40) *
No, this is not about their PREVIOUS unreasonable behaviour
This is stating they must CEASE any collection as tehre is a set aside application in place, so enforcing a judgement now would be premature and ITSELF unreasonable


To be clear this letter isnt about any previous behaviour only the current matter re unreasonable behaviour in trying to enforce a judgement while a set aside application is play. Thanks again, Nos..
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Hexx
post Wed, 2 May 2018 - 10:16
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This is the draft order. The link to the template was sent to me by Southpaw82.


IN THE COUNTY COURT AT TRURO

MIL COLLECTIONS LIMITED (Claimant)

And

(Defendant)




Claim Number

UPON reading the Defendant's application dated xxxx and the annexed witness statement of xxxx dated xxxx

IT IS ORDERED that:

1. The default judgment dated xxx be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by xxxx paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by xxxx.
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nosferatu1001
post Wed, 2 May 2018 - 10:38
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The issue I see there is it allows MIL to comply with 3, and then discontinue before the hearing.

At that point you would need to sue them for damages to get the set aside fee back.
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southpaw82
post Wed, 2 May 2018 - 10:40
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Do you know what costs reserved means?


--------------------


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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nosferatu1001
post Wed, 2 May 2018 - 10:43
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I thought that the reserved was only until the hearing - and if there wasnt one, any chance to discuss them woul dbe lost. Please let me know my error, as I'm always happy to learn here!
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Hexx
post Wed, 2 May 2018 - 15:59
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QUOTE (southpaw82 @ Wed, 2 May 2018 - 11:40) *
Do you know what costs reserved means?


from google

'Costs reserved' means that that the judge is postponing making a decision on the costs of that hearing. The judge may specify when the decision is to be made, e.g. 'Costs of today reserved to the final hearing'.

I take it to mean that the judge would/could order the claimant (Mil) to pay the set aside fee in court. If Mil discontinue they have to pay it anyway. Thats how I understand it.
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southpaw82
post Wed, 2 May 2018 - 17:31
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It means you can apply to the court for costs to be determined at a later date. There’s also Rule 36.1

QUOTE
(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.


You can make your application then under that rule.


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nosferatu1001
post Thu, 3 May 2018 - 07:42
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I didnt think that applied in small claims? Im sure Gladstones have used that before to try to discontinue without cost.
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Redivi
post Thu, 3 May 2018 - 07:59
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Liability for costs

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
(2) If proceedings are only partly discontinued –
(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
(3) This rule does not apply to claims allocated to the small claims track.
(Rule 44.9 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)


The Court does , however, have discretion under CPR 44.2 when costs are allocated

This post has been edited by Redivi: Thu, 3 May 2018 - 07:59
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ostell
post Thu, 3 May 2018 - 08:00
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I think that one still applies as it's basically unreasonable conduct as they have wasted everybody's time by bringing the case only to discontinue when they knew they could not win.
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Hexx
post Thu, 3 May 2018 - 12:13
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Thanks for everyone's useful input. The person I'm assisting is aware that we may not get back the set aside fee straightaway should they discontinue but as we are in Truro I expect them to show up. Should they discontinue and not have to pay costs then were would issue a claim for DPA breach and set aside fees anyway.
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southpaw82
post Thu, 3 May 2018 - 14:33
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Costs reserved still presents a route to ask for costs if they discontinue, hence why it’s included in the draft.

Discontinuance can be opposed (r 38.4) or the unreasonable conduct provisions prayed in aid (r 27.14) but that shouldn’t be required where costs were reserved.

QUOTE (nosferatu1001 @ Thu, 3 May 2018 - 08:42) *
I didnt think that applied in small claims? Im sure Gladstones have used that before to try to discontinue without cost.



QUOTE (Redivi @ Thu, 3 May 2018 - 08:59) *
Liability for costs

38.6

(1) Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.
(2) If proceedings are only partly discontinued –
(a) the claimant is liable under paragraph (1) for costs relating only to the part of the proceedings which he is discontinuing; and
(b) unless the court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.
(3) This rule does not apply to claims allocated to the small claims track.
(Rule 44.9 provides for the basis of assessment where the right to costs arises on discontinuance and contains provisions about when a costs order is deemed to have been made and applying for an order under section 194(3) of the Legal Services Act 2007)


The Court does , however, have discretion under CPR 44.2 when costs are allocated

Has this case been allocated to the small claims track?

This post has been edited by southpaw82: Thu, 3 May 2018 - 17:45


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Hexx
post Fri, 4 May 2018 - 15:34
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QUOTE (southpaw82 @ Thu, 3 May 2018 - 15:33) *
Has this case been allocated to the small claims track?


Hi Southpaw. Thank you for you valuable input.
To recap.

1. An LBC was received.
2. A CCJ was received
3. Set aside application and fee submitted as the claim form was never received.
4. Letter received from the court stating the claim has been transferred to Truro and awaiting time and date of the hearing.
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Hexx
post Fri, 15 Jun 2018 - 08:12
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Hi all,
My friend has received her court date for set aside hearing early July. I have lay-repped at 4 court hearings but not a set aside. Im assuming I dont have to supply any more court documents for the set aside but need to argue the main points in the witness statement (see below)??
Should I take any other court documents with us?
Also at the end of March we sent a letter to the DVLA asking when LLawnroc accessed the registered keepers data. We still haven't heard anything from them. How long should it take for them to reply and should we chase them again now.
Thanks in advance.


WITNESS STATEMENT



In Truro County Court

Case Number xxxxxxx

Mil Collections (Claimant) v xxxxxxxx (Defendant)


I am asking to have the above judgement set aside on the following grounds:

I never received the County Court Claim Form. I received a Judgement for Claimant (in default) letter stating that I had not replied to the claim form and that I was required to pay £215. Mil Collections have purchased this 'debt' from parking company Llawnroc Parking Services Ltd under the ambit of Champerty and Maintanance even though they were instructed by the DVLA that no personal data was to be processed. Llawnroc Parking Services Ltd’s KADOE contract with the DVLA does not allow such debts to be sold and I have not received a notice of assignment from Llawnroc Parking Services Ltd in accordance with The Law of Property Act 1926 S.136 that it sold the debt.
On these grounds I had every intention of defending this claim. I have since received a letter from Mil Collections stating that even though the 28 days since the judgement was entered have not yet elapsed the payment has increased from £215 to £305.

I believe the facts stated in this witness statement are true


Signed


Dated
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nosferatu1001
post Fri, 15 Jun 2018 - 10:12
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Of course you chase them! they normally manage a week or so. SO CHASE NOW

Thats not a WS for a set aside. That needs to be about the facts of the set aside and why it should be granted - there is NOTHING there about how you didnt receive court papers, etc.

You shoudl also provide a Draft Order that orders MIL to issue the claim form within 14 days, set aside the CCJ, reserve cots, but also to pay you your set aside costs of £255 if they discontinue or fail to file a copy of the claim form with you

You shpould also show you have a good defence. One page A4 would be sufficient.
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Hexx
post Wed, 4 Jul 2018 - 00:47
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Update on this one. Due to projects at work and being away I was unable to put much further time into this. On Nos's advice I put together a defense with the usual Mil arguments and sent it off early last weekand the friend Im assisting and me attended court today.
Mil were a no show. The judge read out a letter from Mil contesting the set aside and then stated he was happy that the application was in order and the judgement will be set aside. He then wrote a court order ordering the parties to submit their defenses within 5 weeks. We were out in 10 mins.
A couple of standout points .
THe judge started off by stating that Mil havent shown up today and he paused and added 'They usually dont'.
When looking at Mils paperwork he said he's looked over their Deed of Assignment and then added 'For what its worth'...
He informed us that he put in the order that we could add further arguments if we wanted. I clarified this with him and he confirmed it. I'd made no mention of any of the arguments surrounding the actual issuing of the ticket for example.I read it that he was subtly advising me to expand on more arguments than I'd submitted.
He also wanted to know when we both on holiday and he noted the dates so he could instruct the court not to put a hearing on those days and then he was off to lunch.
Great judge. Didnt query what I was doing there. Clearly familiar with Mil and their behaviour.. Never discussed why the defendant hadnt responded to the claim and was pretty disparaging about Mil.
I was lucky with my lack of preparation and didnt have to do much. It could have been very different.
The coming weeks are slower I will have a lot more time to put the full defense together.
Great day what with the footie too....
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SchoolRunMum
post Wed, 4 Jul 2018 - 00:58
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Very good!

Thanks for the update - which Judge and which Court, please? MIL have no chance because the DVLA have confirmed parking firms can't sell them data like this, assuming Llawnroc Parking got your friend's data from the DVLA in the first place.

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