I have received a claim form from MIL collections, I have acknowledged it and I'm now looking for some advice on how to put across my defence. The deadline for submitting my defence is the 16th.
I'm also going to send a part 18 request for further information (template found on here).
This is what I have so far;
The Defendant denies any liability whatsoever to the Claimant MIL Collections or in the first instance Car Park Management Service Ltd, for all of the following reasons any of which is fatal to the claimants case.
i. The Claimant has no standing to bring a case.
ii. The Claimant has no capacity to form a contract with the Defendant.
iii. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
iv. The claimant provided no service to the Defendant.
The Claimant has not disclosed a full Cause of Action .
Any help is appreciated,
Singi
Do you know if - in connection with the original ticket from the original parking company (Car Park Management Service Ltd) - the registered keeper's details were obtained via the DVLA?
They were yes, I emailed the DVLA to complain about CPMS passing my details on to MIL Collections.
You need to do a lot of reading about the CPMS-Mil scandal and find examples of defences because yours omits all the vital points and is next to useless
Unfair Terms in Consumer Contracts Regulations 1999 have not only been replaced but as a defence point were kicked out by the Supreme Court three years ago
Presumably the DVLA are staring at a GDPR breach here.
I would notify the ICO now.
However your primary focus should be to put your defence together, there must be plenty of examples on here, there's been quite a number of incidences involving MIL. Try to get the most recent you can find and adapt it to your circumstances.
Would this be a suitable case to raise a counterclaim for the breach of GDPR? The DVLA has previously stated that the KADOE contract does not permit data to be sold on.
So champerty and maintenance could be added to this as weell.
CPMS and Mil have been previously investigated so they can't deny it's against KADOE
I have a vague recollection that Mil argues that the arrangement is now different
Cannot see how any arrangement that gives Mil the ownership of the "debt" gets around KADOE
But at the moment this is not a debt, it's an alleged debt.
I did see a letter on here some months back from MIL which had been adjusted so they were pursuing it as a Debt Collector/Agent (a la Debt Collection Plus), but of course in that arrangement they wouldn't be able to raise a claim in their own name, as they have done here. This seems to have reverted back to the debt ownership model again.
@ Singi - what are the EXACT particulars of claim, and have they previously sent any letters, copies of original tickets. For example a Letter Before Claim, or an assignment of debt?
Ok, I'll do some more research and have a look at some more recent cases. Thanks so far.
Here is a link to the recent correspondence I've had:
hxxp://s1044.photobucket.com/user/nitropropane/library/PCN
Also this was the response I got from the DVLA regarding my data being sold on:
DISCLOSURE OF DVLA VEHICLE KEEPER DATA TO MIL COLLECTIONS
On 25 November 2017 you contacted DVLA about Car Park Management Services (CPMS) Ltd passing your vehicle keeper data to MIL Collections Ltd.
In my response to you on 27 November 2017 I stated that DVLA was in the process of looking into the arrangements in place between parking operators like CPMS Ltd and MIL Collections Ltd and that I would contact you when an update is available. I am now able to provide you with an update on the current position.
The arrangements in question, referred to as “debt assignment”, involve private parking companies assigning or selling debt or alleged debt arising from unpaid parking charges to MIL Collections Ltd, who then become the legal owner of that debt. This is different to sub-contracted debt collection, where the debt collection company acts on behalf of the private parking company.
This issue has required careful consideration due to the sensitivities surrounding the disclosure and use of the personal data of vehicle keepers held by DVLA. The Agency’s consideration has necessarily taken some time, but soon DVLA will conduct a full audit of CPMS Ltd’s compliance with the terms & conditions relating to its use of DVLA data. Any issues found at that audit could result in suspension from being able to request vehicle keeper data from DVLA.
DVLA will also be working closely with the British Parking Association (BPA) and the International Parking Community (IPC) - the Accredited Trade Associations for the private parking industry - to ensure DVLA’s position on debt assignment is clearly understood.
I trust I have explained matters but, if you remain unhappy with the service you have received, you can write to our Complaints Team and I have provided a link to our complaints procedure leaflet for your reference:
https://www.gov.uk/government/organisations/driver-and-vehicle-licensing-agency/about/complaints-procedure
Yours sincerely,
Steve Hopkins
Data Sharing Strategy & Compliance
A tonne of fudge from the DVLA, public leeches not public servants.
Without the DVLA then you are left with including the Kadoe contract and pointing out to the judge where it disallows PPC's from selling the debt.
This is V4, you will have to get a copy of the Kadoe agreement inforce.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/455973/Annex_A_-_KADOE_Fee_Paying_Contract_V4.pdf
G1.3. The Customer may only disclose the DVLA’s Confidential Information
to the Staff who are directly involved in the supply of the Data through
the KADOE Service and who need to know the information, and shall
ensure that such Staff are aware of and shall comply with these
obligations as to confidentiality.
G1.4. The Customer shall not, and shall ensure that the Staff do not, use any
of the DVLA’s Confidential Information received otherwise than for the
purposes of this Contract.
H1. Transfer and Sub-Contracting
H1.1. Except that the Customer may sub-contract its Processing of the Data
to a Data Processor and may sub-contract to a debt collector the
recovery of unpaid Parking Charges from any person in accordance
with clause D5.1, the Customer shall not assign, sub-contract or in any
other way dispose of the Contract or any part of it without the prior
written permission of the DVLA.
H1.2. Sub-contracting any part of the Contract shall not relieve the Customer
of any of its obligations or duties under the Contract. The Customer
shall be responsible for the acts and omissions of its sub-contractors
as though they are its own. Where the DVLA has consented to the
placing of sub-contracts, copies of each sub-contract shall, at the
request of the DVLA, be sent by the Customer to the DVLA as soon as
reasonably practicable.
When did you get the email from the DVLA? Was it a while ago? Write back and notify them that you've received a claim from MIL.
I thought they'd given an undertaking not to pursue legal action? The DVLA should be informed of this claim if you haven't already.
Ask if CPMS has requested permission to sell the debt and if the DVLA has granted it
A denial gives you the evidence of a specific breach of KADOE
There is a new version of the KADOE contract (May 2018) which says
Is GDPR retrospective? If there is a claim form, the matter has probably been ongoing since way before GDPR?
Not sure. However the OP has only just found out that his personal data is currently being misused. With all emphasis on the 'currently'.
I've done a bit of research today on what to put in my defence, I'll put a draft up later. I'm also going to email the DVLA to find out who accessed my details and when. I'll be pursuing CPMS parking once I get this done and dusted
With respect to the data issue, raise a formal complaint with the ICO. If you can get them to agree that your data has been misused, and if they indicate who they think might be at fault (could be PPC, could be DVLA, or both) then you'll have a better idea of who to pursue, and it will be valuable ammunition.
But concentrate on the defence for now.
This is what I have so far;
Defence
The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case :
1. The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Car Park Management Service Ltd) and has no legal capacity to bring the claim
The Claimant has purchased the alleged debt from a parking management Company, Car Park Management Service Ltd. Car Park Management Service Ltd obtained the Defendant's personal data from the DVLA under the Keeper at Date of Event (KADOE) agreement that strictly forbids passing on of the information to third parties. The Claimant is not an agent of, or in any way associated with Car Park Management Service Ltd. The consequence of this is that the Claimant is unlawfully using the Defendants details and is in breach of the Data Protection Act.
It is the defendants’ belief that Car Park Management Service Ltd have sold the defendants personal data with no prior written permission from the DVLA and is therefore in breach of the KADOE contract clause D5.1. Under the provisions set by Ex turpi causa non oritur actio, the Claimant must be prevented from benefiting from this unlawful act.
The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant has no locus in this matter and falls within the ambit of Champerty and Maintenance.
2. The Defendant has never owed any debt to the Operator (Car Park Management Service Ltd) to be assigned.
Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016.
The Operator has failed to provide to the Defendant a copy of the assignment of the alleged debt to the Claimant. Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.
It follows that without any true assignment the Claimant has no cause of action and these proceedings have no basis whatsoever and are wholly unreasonable and vexatious; the purported assignment being a false instrument.
3. The Operator (Car Park Management Service Ltd) had no capacity to offer a contract with the motorist.
With regards to the Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract and it is submitted that such an assignment would be Champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Court is asked to consider striking the matter out, as was the case in MIL Collections Ltd -v- Stephen Bowker, Case No. B1QZ7N32 Oldham County Court 15/01/2016.
The Claimant is also put to proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators. Even if a debt had existed, it would be due to the Land owner not the operator, nor the Claimant.
4. No consideration passed from either the Operator (Car Park Management Service Ltd) or the motorist.
The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a license to park. Whatever the conduct was that the Claimant alleges, a breach of a license would be trespass, not a breach of contract. It could only be pursued by the land-owner.
5. The signage did not offer a contract with the motorist.
The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).
6. The Operator (Car Park Management Service Ltd) did not identify the driver.
The defendant neither confirms nor denies being the registered driver of the alleged parking incident. It is therefore for the claimant to provide proof that this is the case and that keeper/driver liability has been proven in accordance with schedule 4 of the protection of freedom act 2012.
As a consequence of non-compliance with the POFA, a private parking charge can only be recovered from the driver. The Claimant is put to strict proof as to the identity of the driver who parked the vehicle on the material date and is reminded that it is trite law, that no lawful presumption can be made that a keeper was the driver. This was confirmed in the POPLA 2015 Annual Report, by Henry Greenslade, a parking law expert barrister and Lead Adjudicator (both of POPLA and previously, PATAS) who confirmed that there is no lawful presumption that a keeper was the driver and without the parking firm's full compliance with Schedule 4 of the statute, the keeper cannot be held liable.
- This Claimant is put to strict proof that the notices issued and procedures followed fully complied with the requirements of the POFA and that they are entitled to
rely upon the keeper liability provisions. I submit that the Claimant has no such right, has no interest in this matter and there is no 'debt' and no cause of action
I believe the facts stated in this defense are true.
Every para must be numbered
For 1) why does this go on to talk about the deed of assignment? What relevance does it have to the point you were making?
For 2) You seem to confuse two issues - that it is a chose in action, and that it is a false instrument. I would separate these out.
Defence
The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:
1. The Claimant has not acquired the alleged debt as a valid Assignment from the Operator (Car Park Management Service Ltd) and has no legal capacity to bring the claim
The Claimant has purchased the alleged debt from a parking management Company, Car Park Management Service Ltd. Car Park Management Service Ltd obtained the Defendant's personal data from the DVLA under the Keeper at Date of Event (KADOE) agreement that strictly forbids passing on of the information to third parties. The Claimant is not an agent of, or in any way associated with Car Park Management Service Ltd. The consequence of this is that the Claimant is unlawfully using the Defendants details and is in breach of the Data Protection Act.
It is the defendants’ belief that Car Park Management Service Ltd have sold the defendants personal data with no prior written permission from the DVLA and is therefore in breach of the KADOE contract clause D5.1. Under the provisions set by Ex turpi causa non oritur actio, the Claimant must be prevented from benefiting from this unlawful act.
2. The Defendant has never owed any debt to the Operator (Car Park Management Service Ltd) to be assigned.
Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016.
3. The Operator has failed to provide to the Defendant a copy of the assignment of the alleged debt to the Claimant.
Furthermore, the partial assignment fails to meet the conditions required of a valid Legal Assignment in accordance with The Law of Property Act 1925 Section 136(1). As an Equitable Assignment the Claimant may not bring an action unless the Operator is included as a party.
It follows that without any true assignment the Claimant has no cause of action and these proceedings have no basis whatsoever and are wholly unreasonable and vexatious; the purported assignment being a false instrument.
4. The Operator (Car Park Management Service Ltd) had no capacity to offer a contract with the motorist.
With regards to the Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract and it is submitted that such an assignment would be Champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Court is asked to consider striking the matter out, as was the case in MIL Collections Ltd -v- Stephen Bowker, Case No. B1QZ7N32 Oldham County Court 15/01/2016.
The Claimant is also put to proof that the Operator had sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf as required in the British Parking Association’s Legislation Guidance to Operators. Even if a debt had existed, it would be due to the Land owner not the operator, nor the Claimant.
5. No consideration passed from either the Operator (Car Park Management Service Ltd) or the motorist.
The Operator had no standing to offer a contract; there was no meeting of minds nor any consideration passed. None of the elements that are fundamental to a contract were present and therefore no contract could possibly have existed. The Defendant was, at the most, granted a license to park. Whatever the conduct was that the Claimant alleges, a breach of a license would be trespass, not a breach of contract. It could only be pursued by the land-owner.
6. The signage did not offer a contract with the motorist.
The Defendant has no idea what terms and conditions were stated on the signs but disputes the Claimant’s statement that such an amount would have constituted an offer and submits that it in fact threatened punitive sanctions to discourage the undisclosed conduct. The Defendant has the reasonable belief that the Operator’s intention was not to offer a genuine contract to park at that price and the main purpose was to deter the undisclosed conduct by attempting to enforce a penalty. The Defendant refers the court to 3YK50188: Civil Enforcement Ltd v McCafferty (Luton County Court appeal) that was decided by Mr Recorder Gibson QC in almost identical words (21 February 2014).
7. The Operator (Car Park Management Service Ltd) did not identify the driver.
The defendant neither confirms nor denies being the registered driver of the alleged parking incident. It is therefore for the claimant to provide proof that this is the case and that keeper/driver liability has been proven in accordance with schedule 4 of the protection of freedom act 2012.
As a consequence of non-compliance with the POFA, a private parking charge can only be recovered from the driver. The Claimant is put to strict proof as to the identity of the driver who parked the vehicle on the material date and is reminded that it is trite law, that no lawful presumption can be made that a keeper was the driver. This was confirmed in the POPLA 2015 Annual Report, by Henry Greenslade, a parking law expert barrister and Lead Adjudicator (both of POPLA and previously, PATAS) who confirmed that there is no lawful presumption that a keeper was the driver and without the parking firm's full compliance with Schedule 4 of the statute, the keeper cannot be held liable.
- This Claimant is put to strict proof that the notices issued and procedures followed fully complied with the requirements of the POFA and that they are entitled to
rely upon the keeper liability provisions. I submit that the Claimant has no such right, has no interest in this matter and there is no 'debt' and no cause of action
I believe the facts stated in this defence are true.
How does this look now?
Also I've been in contact with the DVLA, I need to fill out a V888 form to find out who accessed my details and when. Does this sound right?
there is an email address where you can request details of who asked for your details. Haven't got it to hand at the moment, a search should find it.
Edit: Back on the other computer SubjectAccess.Requests@dvla.gsi.gov.uk
Apologies, I've amended it again. Hopefully this reads better.
Thanks Ostell for the email address, I've now requested the information through them.
1. The Claimant has not acquired the alleged debt as a valid assignment from the Operator (Car Park Management Service Ltd) and has no legal capacity to bring the claim.
The Claimant has purchased the alleged debt from a parking management Company, Car Park Management Service Ltd. Car Park Management Service Ltd obtained the Defendant's personal data from the DVLA under the Keeper at Date of Event (KADOE) agreement that strictly forbids passing on of the information to third parties. The Claimant is not an agent of, or in any way associated with Car Park Management Service Ltd. The consequence of this is that the Claimant is unlawfully using the Defendants details and is in breach of the Data Protection Act.
It is the defendants’ belief that Car Park Management Service Ltd have sold the defendants personal data with no prior written permission from the DVLA and is therefore in breach of the KADOE contract clause D5.1. This is therefore an invalid assignment of alleged debt.
Under the provisions set by Ex turpi causa non oritur actio, the Claimant must be prevented from benefiting from this unlawful act.
2. The Defendant has never owed any debt to the Operator (Car Park Management Service Ltd) to be assigned.
The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant has no locus in this matter and falls within the ambit of Champerty and Maintenance.
Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016.
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